Bill C-316

Court Challenges Program Act

An Act to amend the Department of Canadian Heritage Act (Court Challenges Program)

This enactment amends the Department of Canadian Heritage Act to specify that, in exercising the powers and performing the duties and functions assigned to the Minister of Canadian Heritage under that Act, he or she shall maintain the Court Challenges Program.

Canadian Heritage

[The Speaker, Liberal, Greg Fergus]

It being 3:21 p.m., the House will now proceed to the taking of the deferred recorded division on the motion to concur in the ninth report of the Standing Committee on Canadian Heritage concerning the extension of time to consider Bill C-316, an act to amend the Department of Canadian Heritage Act with regard to the court challenges program.

Call in the members.

[Taleeb Noormohamed, Liberal, Parliamentary Secretary to the Minister of Canadian Heritage]

Mr. Speaker, I have the honour to present, in both official languages, the ninth report of the Standing Committee on Canadian Heritage in relation to Bill C-316, an act to amend the Department of Canadian Heritage Act and the court challenges program.

The committee has studied the bill and, pursuant to Standing Order 97.1(1), requests a 30-day extension to consider it.

Court Challenges Program Act

[The Speaker, Liberal, Greg Fergus]

It being 3:28 p.m., the House will now proceed to the taking of the deferred recorded division on the motion at second reading stage of Bill C-316, under Private Members' Business.

Call in the members.

The House resumed from November 8 consideration of the motion that Bill C-316, An Act to amend the Department of Canadian Heritage Act (Court Challenges Program), be read the second time and referred to a committee.

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

Madam Speaker, I want to start by thanking everyone who has participated in this debate. The Charter of Rights and Freedoms is critically important to the good of our democracy and of our country.

It exists to ensure that the rights and freedoms of minorities are respected and protected in our laws and by our governments. However, it is not and cannot be merely a static document. We must be able to call upon it at need, to weigh and measure the laws that we enact in this place, to ensure that these laws and government actions do, in fact, respect and protect those rights and freedoms.

Doing so cannot be the sole purview of those who are financially well off and who can personally afford to engage the legal process. There must also be recourse for ordinary people to challenge laws that they believe are unjust or that unreasonably infringe upon their rights and freedoms, to test those laws against the fundamentals of the charter. That is the court challenges program.

The court challenges program, however, has been on and off again over the years, and this is problematic. The purpose of this bill, Bill C-316, is to provide an enduring mechanism wired into legislation, administered by arm's-length, independent experts, to support the examination of nonfrivolous, nonvexatious questions that are significant to the public good. This will enable these important questions to be brought forward, irrespective of the financial means of the proponents, to be answered properly in a court of law.

In doing so, we strengthen the charter itself and bolster this critical foundation of our democracy. I urge all members to support this bill. Let us get it to committee.

[Frank Caputo, Conservative, Kamloops—Thompson—Cariboo, BC]

Madam Speaker, it is always a pleasure to rise on behalf of the people of Kamloops—Thompson—Cariboo.

Before I begin, I want to pass on my condolences and recognize the life of Eugene Dery from my riding. He leaves behind a son, who is approximately 20 years old, Dax, and his wife Kim Galloway, whom I met through my sister. I grew up knowing them and have known them throughout the years. I extend my deepest condolences to the family. May perpetual light shine upon him.

On a more positive note, I want to recognize Ethan Katzberg from my riding. Mr. Katzberg took home gold in the hammer throw. Good for him. We are obviously very proud of him. He is the one to beat, following in the line of Dylan Armstrong. We look forward to seeing Ethan at the Olympics doing his best to represent not only Canada but also Kamloops—Thompson—Cariboo.

We are here today to discuss Bill C-316, an act to amend the court challenges program. This is an interesting act when we think about it. In my research to prepare for my speech, I saw that the court challenges program has existed for a great deal of time. I knew that it existed, but I was not sure exactly how it had operated in the past.

One of the things that struck me is that this bill would enshrine the court challenges program into law. I know that my colleague from Lethbridge did an excellent job in her speech on this issue, but I will be addressing some of the points she made and perhaps some of the points that the sponsor of the bill made. I have some concerns.

The reality is that with this legislation, in my respectful view, we would be legislating an undermining of Parliament in a certain way. Parliament passes laws and the courts interpret them; there is no issue there, and frequently the courts will engage in a dialogue. I raised this with Justice Moreau of the Supreme Court of Canada, although I am not sure if she has been sworn in. She is the chief justice for Alberta for the time being if she has not been.

I asked her about the dialogue between Parliament and the courts. Parliament speaks through its legislation, the courts interpret the law and then Parliament speaks again if it needs to. This bill would essentially fund people to go to court to, in my view, look at ways that Parliament got it wrong. That is not to say the courts need any help. Frequently, the courts strike down legislation passed by Parliament, or they uphold it as constitutional, but those things happen irrespective of a third party like this.

From what I can see, this program costs $5 million at this time. It could be substantially more. By my estimation, about 30% of that alone is bureaucratic costs. We have been talking a lot about heating oil and things like that. How many heat pumps is the government going to buy for people? How many heat pumps would $5 million buy? Sometimes we lose sight of the fact that we often talk here in the billions of dollars.

A senior contacted my office not long ago saying they had to choose between putting food on the table and buying shoes. To them, $5 million sounds like a lot of money. I know it certainly was when my family came from Italy. They did not really have two pennies to rub together. Sometimes we lose sight of this.

Not only that, we would create a bureaucratic entity beyond asking people to challenge our laws. There is no issue with the idea that people disagree with what Parliament passes. It happens all the time. That is why the courts will make various decisions. However, this is done routinely when somebody brings an action to the court.

I am going to underscore as well that when we pass legislation here, it goes through second reading debate. Sometimes bills pass with unanimous consent, but very rarely will a significant bill pass that way. I think I have seen it twice so far.

Bills go through second reading debate and then go to committee. Who do we hear from at committee? We hear from witnesses. On the justice file, who are those witnesses? Invariably, they are lawyers, experts who will tell us what is wrong with the bill: “Your bill has this constitutional frailty in this spot and this spot.” Then someone else will come in and say, “Yes, I agree, but I don't think the frailty is here and here, I think it might be over here.” What do we do? We take that and go back, potentially through an amendment. At third reading, we have more debate, and then it goes to the Senate. What happens at the Senate? There is more debate. Then, eventually, we will have royal assent after it has gone through the machinations in the Senate and then it goes to the courts. There is this idea that Parliament does not have ample opportunity to get it right and to hear from the very lawyers who will be making these courts challenges.

However, these challenges are made supplementary to the actual challenge. What I mean by that is, for example, somebody who believes that they are aggrieved by the statute on charter grounds will say, “This offends my section 7 right to life, liberty and security of person”, and they will challenge the law on constitutional grounds. Frequently, I presume, this program will fund somebody to intervene. Well, somebody is already making that challenge in a lot of instances from what I can see, and so I question the efficacy of that.

The other issue I have is that this issue is run through a university. I used to teach at Thompson Rivers University and I will give a shout-out to them, but this is done through the University of Ottawa. Now, we will obviously have in a university faculty, particularly one like law, divides. Some people are going to have one view of the law and some people will have another view of the law. In here, we have Liberals, Conservatives, New Democrats, Greens and the Bloc. They are going to have different perspectives on how the world works, which is fine; actually, it is more than fine, it is central to a thriving democracy. However, the people who administer this program are going to be, through their perspective, deciding who gets these programs. Invariably, there will be winners and losers, and it does not seem to me that we know exactly how that is going to be administered, especially when it is being administered right now through a third party. That, in my view, does raise some issues.

The importance of people who are writing academically cannot be underscored. It is, in my view, central to anybody who is a professor, particularly a professor of law or political science. We do frequently receive feedback. We, as members of Parliament, are expected to take feedback on our laws. In my view, that is the correct mechanism by which we should be addressing these laws and not funding people who would not otherwise be in court on a matter of their own in doing so.

One of the issues that we have seen about this dialogue is that, in my view, this Liberal government has not necessarily acted well on that dialogue. For example, Bill S-12, the issue of the sex offence registry, was taken literally right down to the last day. It is how the courts work. The courts act and Parliament reacts. Parliament legislates, the courts interpret and it is up to Parliament to react. It took us literally months. We could not actually get this right. That is how things are supposed to be working. We can also look at this when it comes to that extreme intoxication case that we had to legislate on very quickly. However, sometimes, and this is one failing of the Liberal government of many on the justice bill, this Liberal government does not always react.

If we want to look at places where we should be devoting our resources, the courts have said that it is unconstitutional to have back-to-back first degree murder convictions and for parole ineligibility to be served consecutively.

I am out of time and so I will wrap it up there.

[Paul Chiang, Liberal, Parliamentary Secretary to the Minister of Immigration]

Madam Speaker, I rise today on a matter of great importance touching on the fundamental rights and freedoms of all people in Canada. I speak of the court challenges program and the legislation before us, Bill C-316, an act to amend the Department of Canadian Heritage Act.

Since its creation in 1978, the court challenges program has come to be seen as a unique feature of our constitutional democracy, helping people in Canada to bring forward legal cases when they believe their most cherished rights have been infringed upon, regardless of their means. It enables individuals and organizations to challenge laws and policies that run counter to Canada's fundamental rights and freedoms. It is a true testament to our country's unwavering commitment to justice, equality and social inclusion.

The modernized court challenges program, reinstated in 2017, has been instrumental in ensuring unfettered access to justice and equality for every Canadian. Over the years, it has funded hundreds of challenges of national interest, adapting to the evolving needs of our society by helping to articulate a broader range of civil and social rights. This progression is crucial as our society continues to evolve and embrace a more diverse and inclusive perspective.

In sustaining and protecting this program further through Bill C-316, we would be solidifying its proven effectiveness in safeguarding rights and promoting equality before the law. This legislative initiative aims to complement the important reforms enacted by the modernization of the Official Languages Act through Bill C-13, which received royal assent on June 20, 2023. Bill C-13 acknowledges the important role of the court challenges program by incorporating its official language rights component into the Official Languages Act and its human rights component into the Department of Canadian Heritage Act, thereby underscoring the government's unwavering commitment to this iconic program.

The court challenges program plays an indispensable role in supporting official language minority communities in all regions of the country. By challenging laws and policies that could erode their linguistic rights, it helps preserve the vitality of these communities while ensuring that linguistic duality and diversity remain a proud part of Canada's social and cultural fabric. Furthermore, this program has consistently been at the forefront of protecting the human rights of all people in Canada. It has empowered vulnerable and marginalized communities, has helped defend minority rights and has consistently helped advance the principles of justice and equity.

One such example is the funding granted by the court challenges program in 2019 and 2020 for an intervention in a class-action lawsuit on the issue of the forced sterilization of indigenous women. This intervention seeks to ensure health equity for indigenous women and to address systemic discrimination against indigenous people, while providing a national perspective on behalf of affected indigenous women and girls. Thanks to the program's funding, the issues of gender equity, rights recognition and reconciliation will be deliberated in court through a more inclusive approach to participation in the proceedings.

The program's annual reports reads like a catalogue of the defining social and civil rights issues of our times. Its essential role in helping to advance our democratic principles and ensure that our rights framework reflects the evolution of Canadian society has been amply demonstrated. Through the deliberate and purposeful act of enshrining this program in law by means of Bill C-316, as a strong complement to what has been achieved in Bill C-13, we are affirming our commitment to its long-term viability and are recognizing its proven effectiveness in asserting, clarifying and protecting the rights and freedoms of all people in Canada.

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

Madam Speaker, I am pleased to rise in support of Bill C-316 at second reading. This is a bill that would amend the Department of Canadian Heritage Act to require the minister of heritage to maintain the court challenges program. In other words, it would simply take an existing program and entrench it in legislation.

Why do we have to have something to entrench an existing program in legislation? It is because the Conservatives, twice before, have eliminated the court challenges program. I do not necessarily believe there will be a future Conservative government, but the fear is that a future government would be able, in the absence of this legislation, to simply eliminate this program without coming back to Parliament. Therefore, this is an important change.

As always, the Liberals have done the minimum here. There are some other things we could have done to support the court challenges program. As a Parliament, we could expand its mandate because, right now, it is severely limited to only minority language rights and equality rights under section 15. There have been many calls from the legal community to expand the mandate of this program so it could apply to other cases where, frankly, the government has not taken leadership in protecting rights but where people lack the resources to bring these cases themselves. Court challenges can take years. They can cost literally hundreds of thousands of dollars.

What this program does is level the legal playing field for those who want to defend their rights against the government or against abuse by others in Canadian society. This program has been in existence, off and on, for 30 years, but it has played a very important role in helping defend women's rights, indigenous rights and the rights of other marginalized Canadians, so it is important that we make sure this program endures.

The program was created in 1978 on the issue of minority language rights. When the Charter was adopted, it was expanded just a tiny bit to add equality rights. The program was cancelled by the Conservatives in 1992 before being brought back by the Liberals in 1994, only to be cut again by the Conservatives in 2006. Then we had a big gap. In 2015, both the Liberals and the New Democrats campaigned to restore the program. The justice committee, in 2017, recommended not only that this be entrenched in law, but also that the mandate be expanded. That part is missing from this bill, but in 2018, the program was restarted.

Let me give some examples of kinds of things this program has done. It financed the case that resulted in ending discrimination related to access to what we used to call “maternity benefits” under what was then the UI act. It helped establish what is now known as the rape shield law, which prevents the accused from using the sexual history of a sexual assault complainant as a defence.

The program funded the cases that resulted in restricting access to victims' personal records, such as counselling records, in sexual assault cases. Again, this ruling would not have happened otherwise because women who have been the victims of sexual assault do not have the resources to bring forward this kind of case and fight it through court. Therefore, the Women's Legal Education & Action Fund, LEAF, applied to the program and received funding, which resulted in this very important decision.

One more example is that sex-based discrimination under the Employment Insurance Act for part-time employees who are women was ended as a result of the case. Again, it was brought by LEAF with funding from the court challenges program. We have a very strong history of defence of women's rights.

There are a couple more cases I could provide, but a favourite of mine, as a gay man, is Egan v. Canada in 1995, where two gay men who had been in an intimate relationship for 30 years were denied old age security benefits because they did not fit the definition of a spouse. There was a case, this time by the Metropolitan Community Church of Toronto, taken to court to say that this was unfair because they had been a couple and Egan had paid into these benefits, including to old age security, Canada pension and things like that. This established equal spousal rights in the time before equal marriage.

In one last case, Daniels v. Canada in 2016, it was established that the status of Métis and non-status Indians under the Indian Act were protected. This was brought by the Congress of Aboriginal Peoples, who, again, did not have great resources to spend literally hundreds of thousands of dollars on lawyers.

What is really clear is that there is broad support in the legal community for this program, including and especially in the advocacy of the Canadian Bar Association. There are certain precedents, as I mentioned, about the mandate not being broad enough. Cindy Blackstock and certain disability advocates have demonstrated why we need to expand that mandate so that cases of people with disabilities and of aboriginal women could more easily get into court.

I am going to take a minute to talk about recent events, which I think point to upcoming challenges to the rights of the 2SLGBTQI+ community and particularly to those of transgender and gender-diverse Canadians, who are among the most marginalized Canadians and those with the fewest resources.

Hate crimes against what I like to call the queer community, in reclaiming language, are up. They are up shockingly high. The official figures of those reported to the police show a 64% increase in one year in hate crimes directed against the community. Hate crime data from the police does not actually separate out crimes against trans folks, but a sampling that has been done by academics found that, first of all, hate crimes against the queer community, and particularly the trans community, are more likely to be violent. In the case of gender-diverse people, 80% of hate crimes involve violence. This is where government policies, particularly of certain provincial governments, are fuelling the hate, which has direct results of violence in the community.

I want to talk about the anti-trans school policies in Saskatchewan and New Brunswick for just a minute, because I think the trans and gender-diverse communities are going to want to make sure there is a court challenge to these policies. Without a program like the court challenges program, this would not happen. In August, Saskatchewan announced policy changes requiring parental consent for trans students under the age of 16 to be called by their chosen name and pronoun at school. We do not ask parents whether “William” can be “Billy”, but somehow when it comes to trans kids and their identity, we are creating in Saskatchewan a special bar to using names and pronouns that reinforce the student's identity. The policy was quickly challenged by the University of Regina's pride centre. After a hearing, an injunction was granted that paused the implementation of the policy. The same day, Premier Scott Moe announced he would invoke the notwithstanding clause, and he called an emergency session of the Saskatchewan legislature to enact Bill 137, which amends the education act and includes the notwithstanding clause.

A government used what was really the nuclear option in law to take away rights from kids. It falls into the category of what I would call the spillover of American rhetoric into Canadian politics. It talks about parental rights instead of what we have in Canadian law of parental responsibilities and children's rights. Parents have a responsibility to nurture their kids and to affirm their kids. We know that school peers who use their chosen name and pronouns experienced 71% fewer signs of severe depression, a 34% decrease in reported thoughts of suicide and a 65% decrease in suicide attempts. Therefore, this is a policy that causes great harm. The government could do more to provide leadership in fighting this rising tide of hate, in particular by implementing the 29 recommendations in the white paper on trans rights tabled last June. In fact, e-petition 4666 went up today, asking it to do just that.

In conclusion, New Democrats support Bill C-316, even though we would like to see more from the government to support the court challenges program. It is still important to entrench the program in law in order to make it harder for any future government to eliminate the program. As I said, the court challenges program could use an expanded mandate to be able to fund cases beyond minority language rights and section 15. The program could use increased funding to ensure that it can fulfill its purpose in levelling the playing field on rights in the courts, so that not just those who are already rich and privileged can defend their rights and seek fairness in the courts. Even in the absence of these further improvements, we hope to see expeditious passage of the bill through all its remaining stages.

[Denis Trudel, Bloc, Longueuil—Saint-Hubert, QC]

Madam Speaker, I thank my colleague for pointing out, at the end of his speech, an unacceptable thing that happened. I am talking about a situation where Radio-Canada used a Paris-based company to record a podcast because people in France do not like the Quebec accent. That is very important.

The Quebec accent is what makes us who we are in Quebec. The Quebec accent developed through 400 years of living in this country of ice, snow, forests, cold, fall, summer and heat. It developed through contact with the indigenous peoples, who were here before we arrived, and through contact with the English, who defeated us in 1759. Since that time, we have been intermingling with all the people who have come here over the past 100 years. They came from all over, and we have been enriched by that. It has made us who we are in Quebec right now. That is what makes our language unique, and that is what enriches our way of speaking and our culture, which we are bringing to the rest of the world.

We no longer have to talk about how Quebec is representing itself on the international stage. Denis Villeneuve is at the Oscars almost every year. He was not born in Ontario. He was born in Quebec. Xavier Dolan is at Cannes almost every year. He was not born in British Columbia. He was born in Quebec.

We often hear about Canadian culture outside Canada, and 90% of the time people are talking about Quebec culture. Robert Lepage directs plays all over the world, in Paris, Brussels and Tokyo. He was not born in Manitoba; he was born in Quebec. Cirque du Soleil was not created in Ontario; it came from Quebec. If Canadian culture is talked about internationally, it is thanks to Quebec. People should be on their knees in gratitude. If Canada is talked about around the world, it is because Quebeckers have risen to the top.

I am a bit obsessed with this issue. This is somewhat due to a certain constraint, this particular relationship that we have, because for the past 200 years, we have often been told that we are an insignificant people and we should resign ourselves to a life of poverty. We have developed a kind of “System D” in all areas, whether economic or cultural. This constant confrontation, this dominant-dominated relationship, drives us to stand out as fighters. We are doing it now, we have done it in the past and we will continue to do so in the future. People should buckle up and get ready for a bumpy ride, because when Quebec becomes independent, we will be winning Oscars in Los Angeles and Palmes d'Or in Cannes in our own name. We will win Goncourt Prizes in our own name. The award will not say “Canada”; it will say “Québec”.

The rest of Canada will be happy anyway, because it will have participated to some extent. It will be time to say bye-bye when we are in Hollywood or Cannes or on other major international stages. We will say hello to the gang back in Canada, but Quebec will win the Oscar.

That was my first argument on culture. My colleague started me off on that. Obviously, I had no intention of talking about it. I never want to talk about Quebec. I never want to talk about Quebec's language or culture. I never go there at all. It is not a subject that interests me in the least. I never want to talk about that when the opportunity arises. My Conservative Party colleague started me off on the subject. He passed me the puck. It was too easy and I felt like talking about it.

This has a connection with what we are talking about now: Bill C-316, on the court challenges program. The court challenges program is exhausting, it must be said. It directly concerns language and our ability to protect our language and culture in this country.

The court challenges program was launched in 1978. The timing is no coincidence, because the Parti Québécois and René Lévesque, a major Quebec figure, came to power in 1976. The timing is no accident. In 1977, the Lévesque government introduced one of its first and most important bills. I want to talk about this because it is important.

I would say that, of all the laws that could have been created in Quebec or even in Canada, this is a big one. It is a meaningful, masterful law that changed the course of history. It is really not every day that the course of history is changed through the creation of laws, but that is what happened in 1977. There is a reason why the father of Bill 101 is Camille Laurin, a psychoanalyst and psychiatrist. He knew that we needed to make a strong and powerful mark when it comes to the relationship that we have with ourselves.

That is what we did with Bill 101. What was the crux of Bill 101? It stipulated that, from that point on, there would be only one official language in Quebec, and that was French. We would have only one national language, and that was French. From that point on, we would speak French in our courts, schools, stores and restaurants. Public signage would be in French. Everything in Quebec would be done entirely in our language. That way we would no longer be afraid to be who we are. We were going to make a powerful statement. From that point on, things were going to change.

I would like to remind the House of an important fact. Before 1977, 90% of immigrants who settled in Quebec went to English schools. The children went to elementary school, secondary school, CEGEP and university in English and then they worked in English. Everything was happening in English. The school system itself was anglicizing Quebec. We were anglicizing ourselves, and we were paying for that.

[John Nater, Conservative, Perth—Wellington, ON]

Madam Speaker, it is an honour to rise to debate Bill C-316, an act to amend the Department of Canadian Heritage Act, regarding the Court Challenges Program.

You will recall, Madam Speaker, that I actually began this speech on Wednesday, May 3. I am sure that all members have been patiently waiting these last six months to hear the conclusion of my comments on this bill.

I last spoke about the Conservative legacy when it comes to human rights, particularly that of the late, great John George Diefenbaker. He was a one-man court challenges program. Indeed, it was John Diefenbaker who said, at the beginning of the debate on the Canadian Bill of Rights in 1960:

Here for the first time this bulwark of freedom will be embodied in a declaration by parliament that is in existence and cannot be violated. Furthermore, if any of these several rights should be violated under legislation now existing in the courts in interpreting the particular laws or statutes which have been passed will hereafter ... be required to interpret those statutes of today in the light of the fact that wherever there is a violation of any of these declarations or freedoms the statute in question is to that extent non-operative and was never intended to be so operative.

The bill at hand, as has been mentioned, would require that the minister's power include that of the Court Challenges Program. In fact, this is already within the powers of the minister. This program has been in existence since 1978, in different forms and fashions.

Furthermore, the provisions for how the minister can fund the Court Challenges Program already exist in the same statute, at section 7.1. It further talks about requiring a report. As members would know, reports are already presented by the Minister of Canadian Heritage; the Minister of Employment, Workforce Development and Official Languages; the Minister of Housing, Infrastructure and Communities; the Minister for Women and Gender Equality and Youth; and the Minister of Sport and Physical Activity. They provide annual reports through the departmental results report, departmental plans and departmental evaluation plan.

We must look at the record of the Liberal government when it comes to the rights of Canadians. Let us start with language rights. Members would recall, and I was on the official languages committee at the time, when the Liberal government tried to appoint Madeleine Meilleur as the official languages commissioner. She was a former Liberal cabinet minister who also donated to the Prime Minister's campaign.

I was also on the Canadian heritage committee at a time when it was revealed that the department gave $133,000 to a well-known anti-Semite with a long history of directing hate towards Jewish people. The government did this through an anti-racism action program.

We recently learned that Radio‑Canada used a Paris-based recording studio, rather than a Quebec-based studio, to record a podcast in order to avoid the Quebec accent.

That is indeed shameful. We should be proud of the language of Quebec and the accent that we hear from our Quebec colleagues across the country. We should be protecting that indeed.

As I wrap up my speech, I wish to say how proud I am as a Conservative to stand on the human rights record that all Conservatives have stood on from the time of John Diefenbaker to the present day. I am very proud of that legacy.

The House resumed from May 3 consideration of the motion that Bill C-316, An Act to amend the Department of Canadian Heritage Act (Court Challenges Program), be read the second time and referred to a committee.

[John Nater, Conservative, Perth—Wellington, ON]

Madam Speaker, I heard a riveting comment from a colleague behind me, but I will not go that far.

It is indeed an honour and a privilege to rise in the House this evening to contribute to the debate on Bill C-316, an act to amend the Department of Canadian Heritage Act, court challenges program. Indeed, as has been mentioned in this House, this program has an off-and-on history in this place and in government through the Department of Canadian Heritage. I did have the honour and privilege of serving for some time at the Standing Committee on Canadian Heritage.

Before I get into the meat of my speech, I do want to reflect on one of the more famous quotations from one of the great parliamentarians of this place. The Right Honourable John Diefenbaker was one of the great defenders and protectors of Canadian freedom. He said, “Parliament is more than procedure—it is the custodian of the nation's freedom.”

I think too often in this place we forget about our role as the protectors and defenders of the freedoms of Canadians. If we look back at the history of some of the great orators, some of the great defenders in this place, including Diefenbaker and his bill of rights, the first attempt at enshrining the rights and freedoms of Canadians in a single federal statute was by Diefenbaker. From his humble upbringing, his birth in Neustadt, Ontario, which is just north of my riding, Perth—Wellington, to his time as a defender, as a defence counsel and during his time as a parliamentarian, his focus was on the rights and freedoms of Canadians. That was what he lived for in this place.

We will recall that it was under Diefenbaker that the first woman was appointed to cabinet. It was under Diefenbaker that indigenous peoples in all corners of this country finally had the right to vote and it was through Diefenbaker's bill of rights that we saw the first written efforts at enshrining the rights and freedoms of Canadians.

That history and protection of rights and freedoms continues under other Conservative leaders as well. We need to be proud of their efforts. Indeed, under the leadership of former prime minister Mulroney and former foreign minister Joe Clark we saw the strong stand that Mulroney and Clark took in defending us on the world stage in calling out the apartheid regime in South Africa. We saw the efforts they led in the Commonwealth to make that happen and we saw the work they undertook here at home in Canada when it came to the defence of Canadian rights and freedoms. Their efforts on the two constitutional accords did, in fact, fail but, nonetheless, attempted to enshrine those rights and freedoms and ensure that all members in this country signed on.

To the issue at hand of this bill, Bill C-316, I think Canadians would be forgiven in not fully understanding why this is before us today. Members will know that, in fact, the court challenges program exists today. It is a program that is run out of the University of Ottawa and funded by the Government of Canada, so why is this being done today? Canadians might be forgiven for perhaps seeing it somewhat odd or ironic that the government is creating a program that would sue itself, that would provide funds for the Canadian public to sue themselves. There is an odd strategy there.

If we look back at the history of the court challenges program, in 1978 this was first established under then prime minister Pierre E. Trudeau. It was primarily for language cases. We look at the importance of language rights here today in Canada, and indeed we have a bill before the House, as we speak, Bill C-13, which is the modernization of the Official Languages Act. As luck would have it, was one of the first files I worked on when I first came here in 2015 as a member of Parliament. I was the vice-chair of the official languages committee, the Anglo from southern Ontario at the official languages committee but it was, nonetheless, a great opportunity to learn my beloved second language.

The importance of having the rights of official language minorities protected across the country is, indeed, very important. Whether someone is a Franco-Ontarian, a Franco-Albertan or even from a small language community in the country, it is important to protect their right to be able to receive services in their second language.

My time is dwindling, but I understand I will have four minutes remaining when the House takes up this important issue next. I look forward to concluding my remarks on Bill C-316 next time.

[Heather McPherson, NDP, Edmonton Strathcona, AB]

Madam Speaker, as always, it is a delight to stand in this place and represent the great people of Edmonton Strathcona.

Today we are talking about Bill C-316, an act to amend the Department of Canadian Heritage Act regarding the court challenges program. Basically what this bill would do is amend the Heritage Act to require that the Minister of Canadian Heritage maintain the court challenges program, making sure that this is now in legislation, so that if any future government wanted to cut this program, it would have to do it through legislation. Of course, it would not be a perfect protection for this program, but it would be a good start. It really does make me think about all of the different policies I would like to see protected that have been put in place by various governments. I am going to come back to that as we go forward.

Some people in the House today have said that this is bad legislation and is not something that should be in place, and they have expressed what I would consider some pretty faux outrage about this particular bill. I want to highlight that there are a number of people who believe in the court challenges program, very notable groups that actually think this court challenges program needs to be put into legislation and also needs to be protected and expanded.

The New Democratic Party has been calling for an expansion of this. There is very little money that is allocated to this. It is a very small fraction, a drop in the bucket, compared to what we spend on the justice department. We would like to see this expanded. We are not alone. The people who would also like to see this program expanded are people like Cindy Blackstock and other advocates within the indigenous communities. Legal organizations, including the Women's Legal Education & Action Fund, or LEAF, would love to see this program expanded and put into legislation so that it is protected. Even more notably, the Canadian Bar Association supports the court challenges program.

There are people around this country who are leaders on this and who have asked for this program to be maintained and expanded. It is something that all parliamentarians need to consider. Very few of us are experts in the fields in which we produce legislation, so we take advice from experts. I would say, when we are looking at the justice system, that the Canadian Bar Association, Cindy Blackstock and others would be excellent examples of experts we should be listening to.

There are several reasons why this program is so important, but one of the ones that mean the most to me is that it levels the playing field. It allows Canadian citizens to have access to justice. Often, those Canadian citizens who are least likely to be able access justice are marginalized Canadians. They are women, indigenous people and members of the LGBTQ2+ community. For the people who are often disproportionately impacted by the justice system in a negative way, this helps level the playing field.

I strongly support the program. We could work on making the bill stronger. Certainly, I would like to see the government commit to better funding. We have been calling for stronger funding for this program for some time, so we would like to see that.

I want to talk a little tonight about some of the other things that I think we should be putting into legislation. We are all lawmakers in this place. As I was preparing the notes for my speech this evening, I was thinking about how important it is that we put things into legislation to protect them, protect them from potential future governments that do not share the values of ensuring that there is a level playing field within the justice system for Canadians.

The first thing that came to my mind is my Bill, C-205, which is actually about the Impact Assessment Act. I was very happy, because Minister Wilkinson—

[Andréanne Larouche, Bloc, Shefford, QC]

Madam Speaker, I rise today to speak about Bill C‑316, an act to amend the Department of Canadian Heritage Act, specifically with respect to the court challenges program.

The Bloc Québécois supports this bill in principle. We would like to look at Bill C‑316 in committee and make recommendations. The Bloc Québécois's current position already favours the continuation of the court challenges program, especially considering the important role it plays in promoting the rights of francophones outside Quebec. We therefore support the idea of ensuring the program's future by including it in the Department of Canadian Heritage Act.

However, in my speech, I will go over the Bloc Québécois's reservations concerning the program's terms and conditions, especially the lack of clarity surrounding its management and the process for deciding which cases and organizations will receive funding. Next, Bill C‑316 proposes measures designed to make the program's administration more transparent. On the surface of things, it seems to answer a Bloc Québécois demand related to one of our major criticisms of the program, namely, its claim to operate at arm's length from the executive.

Finally, I will address the fact that this program is currently being implemented and administered by the University of Ottawa, but it is impossible to prove that decisions about cases are not politically driven because of the lack of transparency and accountability measures.

First, in terms of transparency, Bill C‑316 states that the organization responsible for administering the court challenges program would be required to report annually on its activities, including disclosure of the list of cases funded during the year. These reports would be tabled before Parliament. The Bloc Québécois believes it is imperative that the reports include not only the cases, but also the recipient organizations, as well as the amounts of money allocated. That is one way Bill C‑316 could be improved. We would also then be able to assess the amount each part of the program receives, in other words, official language rights and human rights. It would be interesting if the report also had to include a list of the unsuccessful applicants.

Second, the fact remains that the court challenges program can be used to fund challenges to Quebec laws, such as the Charter of the French Language and the state secularism law. The crux of the problem is that we cannot pick and choose, based on our political views, which laws should be challenged and which ones should not be, even if we have good reason to believe that some laws that do not pass the test in the Canadian courts would be deemed constitutional under a future constitution of Quebec.

A partial fix for this problem as far as the official languages component of the court challenges program is concerned could involve a program framework that takes an asymmetrical approach to Canada's official languages. Since the Liberal government recognizes that only one of the official languages is at risk, then it should agree to grant program funding only to cases that defend the rights of francophones.

The text of Bill C‑316 amends the Department of Canadian Heritage Act to specify that, in exercising the powers and performing the duties and functions assigned to the Minister of Canadian Heritage under that act, he or she shall maintain the court challenges program.

Here are a few explanations. From the Bloc Québécois's perspective, the court challenges program has two major flaws in its design. The first is the fact that, historically, the program has helped to undermine the protection of French in Quebec. The second is that, historically, the program was politically oriented and acted as the judicial arm of the executive branch.

Bill C‑316 could potentially fix, or at least mitigate, the second problem we see, namely the program's lack of transparency and independence. This would be brought about by adjustments and improvements, in particular by disclosing in the annual reports not just the cases funded, but also all the amounts granted and the recipient organizations.

As for the first problem, it could also be addressed, but this would require refocusing the vision of Canada's official languages policy, which the Liberal government and its NDP ally just rejected in the review of Bill C‑13. This problem could be solved with amendments to this bill or with future legislation.

The court challenges program has gone through three historical phases. First, the date of the program's creation is significant. The court challenges program was established in 1978 in a very specific context of heightened language tensions and Quebec-Ottawa confrontations following the election of the Parti Québécois in 1976, and the adoption of the Charter of the French Language the following year. We know that Canada's prime minister at the time, Pierre Elliott Trudeau, and his government very much disliked Bill 101.

The year after Bill 101 was passed, Ottawa created the court challenges program to subsidize anglophone lobby groups' legal fees from challenging Bill 101. It was not originally a formal program. The Department of Justice decided which cases would be funded and how much they would receive based on its own objectives. This approach obviously put the government in a conflict of interest.

Between 1978 and 1982, the court challenges program funded six cases, half of which challenged Bill 101. At the time, the program was not at all independent. The cases that would be brought before the courts were selected and funded by the executive branch. To assess applications for funding for language rights, a committee was formed by selecting members from among a small group of candidates proposed by agencies that dealt with official languages.

The third version was initially called the language rights support program. The Stephen Harper government, which had cancelled the first program, was forced to create this new program following an out-of-court settlement with the Fédération des communautés francophones et acadienne du Canada, or FCFA.

The new and current court challenges program arose from a Liberal campaign promise in 2015. The administration of the program was entrusted to the University of Ottawa. The program relies on two committees of experts to decide which cases can be funded according to two streams, namely human rights and official language rights. We know that there is a bit of bias here.

Currently, through an access to information request, it is possible to find out which cases were supported, but it is impossible to find out who the recipients were and how much money they got from the program. This means that taxpayers cannot find out how the money allocated to the program is being spent. Since the year 2000, the names of individuals or organizations receiving money cannot be disclosed, after a court ruled that applications and funding contracts are protected by attorney-client privilege. That has made it difficult, if not impossible, to access accurate information for at least two decades. Annual reports, when available, contain only general information and mention only examples.

To ensure transparency and accountability, a report by the Standing Committee on Justice and Human Rights recommended that, after a case is filed, the names of those who received funding from the court challenges program and the nature of the cases be disclosed in each annual report, unless such disclosure would prejudice the litigants. It appears that no follow-up has been done in this regard.

During the committee's consideration of Bill C‑13 on modernizing the Official Languages Act, the Bloc Québécois tabled an amendment to have the program administered transparently, with consideration for the rights granted by provincial and territorial language regimes, and mirroring the position of the Standing Committee on Justice and Human Rights, to ensure as much transparency as possible. The amendment was rejected with the NDP's support, despite the party's claims about supporting Quebeckers' right to self-determination.

Issues related to the program's transparency and independence came into clear view during the controversy surrounding the $125,000 in funding provided to the English Montreal School Board to mount a legal challenge to Quebec's secularism law.

The Liberal government is hiding behind the program's alleged independence to avoid having to address the fundamental issue: the Canadian government's financial commitment to supporting challenges to Quebec's secularism and language laws.

In addition to the transparency issues, the other problem with the court challenges program is that, although it has been used to advance the rights of francophone minority communities in other provinces, it has also been used to challenge Quebec laws that are designed to promote and protect the French language in Quebec.

That problem stems from the main flaw in Canada's official languages policy, which assumes that there is symmetry between the anglophone and francophone minority communities. That structure, which was designed by Pierre Elliott Trudeau and which the Liberals just refused to change when they modernized the Official Languages Act, pits the interests of Quebec against those of francophones in Canada.

In closing, the francophone communities of Canada have good reason to care about the existence of the court challenges program and to hope that it will be around permanently because it advances their language rights. That is the main reason the Bloc Québécois is not calling for the program to abolished. Rather, we are asking for it to be regulated and modernized.

There are some good things about the court challenges program, but it falls into the official languages trap. This would not be an issue if the Liberal Party and the NDP were willing to accept the solution proposed by the Government of Quebec and the Bloc Québécois, which is to use a differentiated approach in the implementation of the Official Languages Act, or in other words, to stop putting both official languages on equal footing.

If the Liberal government recognizes that only one of the two official languages is at risk—

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

moved that Bill C-316, An Act to amend the Department of Canadian Heritage Act (Court Challenges Program), be read the second time and referred to a committee.

Madam Speaker, it is often too easy to take for granted the many rights and freedoms we enjoy as Canadians. Canada is a free, successful country because of the decisions made by those who came before us. We are an open and inclusive democracy in large part because the rights of individuals are respected. Canada is a country where the rule of law operates independently from politicians and where our Constitution protects the rights of Canadians. This is something we should champion. It is something we should celebrate. It is something we must do everything we can to protect.

I introduced Bill C-316 to build upon the good work of previous Parliaments. In the 42nd Parliament, at the Standing Committee on Justice and Human Rights, of which I was then a member, as part of our study on access to justice we recommended that the court challenges program, which had previously been cancelled, be recommenced. I am happy to say this was in fact done.

In our report, we also called for enshrining the court challenges program in legislation to enhance its sustainability and to ensure that any government seeking its cancellation in the future would require the approval of Parliament to do so. Bill C-316 would do just that. It would enshrine the court challenges program into Canadian law, providing stability and certainty to the program, and ensuring that it continues to operate predictably. This, in turn, would give greater protection to the rights of Canadians as we continue to provide a mechanism that enables individuals and organizations to challenge laws and regulations that they believe violate their rights.

The court challenges program protects and strengthens constitutional rights. It provides funding for individuals and organizations who wish to bring matters of national importance before the courts.

More specifically, the program provides funding to protect our constitutional and quasi-constitutional rights in matters involving official languages and human rights.

Created in the 1970s, the court challenges program played a key role in helping Canadians clarify and assert their rights, especially with regard to official languages and equality rights.

The program was eliminated in 2006, and our government restored it in 2017. We expanded it to include rights not originally covered, such as specific sections of the Canadian Charter of Rights and Freedoms pertaining to fundamental rights, including democratic rights, freedom of expression, and the right to life, liberty and security of the person.

Over the years, the program has been used many times to protect the rights and freedoms of Canadians. It has provided funds to disabled Canadians to help them ensure they are treated fairly. It has helped to clarify the rights of LGBTQ+ people to marry whom they love. It has strengthened the rights of official-language minorities to protect their rights and preserve their culture.

The court challenges program also provided support to important cases, such as Andrews v. Law Society of British Columbia, where the Supreme Court of Canada ruled that a law society could not prevent a qualified permanent resident from practising law in Canada simply because they were not a Canadian citizen.

The court challenges program strengthened the rights of French-language minorities in British Columbia. It helped protect the rights of francophone children to receive French-language education of equivalent quality to that of English-language education.

In its ruling in June 2020, the Supreme Court of Canada reaffirmed the importance of education in the official language of one's choice. The court also recognized the key role that section 23 of the charter plays in the vitality of official language minority communities.

I know that some of my honourable colleagues may ask why we would provide funding to allow people to sue us. I think this asks the wrong question. The right question is why we would fund cases defending the charter, and the answer is that, as we know, the cost of justice can be prohibitively expensive. Justice should not be decided by who has the most money. It is of significant public good that the constitutional rights of Canadians be protected, whether or not they have money.

The value of the court challenges program is that it breathes life into the charter and into the Official Languages Act. It provides meaning to our constitutional rights, particularly by enabling those with lesser means to protect their rights. The program allows matters of merit with significant public impact to be brought forward, regardless of the means of those bringing forward the case.

Other members might wonder if the program allows the federal government to decide which cases receive funding. Does it allow the federal government to sue provincial governments that do not agree?

I can say that the answer to that question is no. The program is independent of the government. It is administered by the University of Ottawa. Funding decisions are made by two groups of independent experts, one for official language rights and the other for human rights.

These committees are made up of experts who are selected based on their expertise in law. The government has no say in which cases receive funding, and the funds are often used to challenge federal decisions or policies.

This is, in fact, a good thing. I think that I can say without much controversy that the government does not always get it right, and it is important that, when policies and laws are put into place, we have a process to review, and possibly correct, these decisions. In a constitutional democracy where the rule of law is paramount, allowing Canadians to bring forward cases when their rights may have been infringed upon is an important part of our constitutional democracy.

We face a great many challenges as Canadians. The world is an uncertain place, but Canada is blessed with tremendous resources and potential. We have some of the best and brightest people in the world, and we have inherited the tremendous institutions that have made us successful: pluralism, freedom of speech and debate, and the opportunity to make a better life for our families. These are the things that bring us together as Canadians.

The rights and the freedoms that we hold dear are critically important to Canada’s success as a country. We must do everything we can to shore up our democracy and protect our constitutional system. By passing Bill C-316 and enshrining the court challenges program into Canadian law, we would be sending a strong message about the importance of protecting the rights of Canadians. It would demonstrate our shared commitment to ensuring that the rights and freedoms guaranteed by the charter, the Official Languages Act and the Canadian Constitution are respected and upheld.

I hope members will join me in supporting Bill C-316, so we can better protect our democratic institutions.