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.