Canadian Heritage Committee on Feb. 1st, 2007

[The Chair, Conservative, Gary Schellenberger]

Good morning, everyone.

Welcome to our witnesses here this morning.

This is our thirty-first meeting of the Standing Committee on Canadian Heritage. We are televised this morning.

Pursuant to Standing Order 108(2), the study on the court challenges program is on our agenda today.

Just to let you know, our sitting today will be over at a quarter to eleven. We do have some other committee business to do for the last 15 minutes.

We welcome you here this morning.

Mr. Matte, perhaps you would like to introduce your delegation, and please give us your presentation, sir.

[Guy Matte, President, Court Challenges Program of Canada]

Thank you, Mr. Chairman.

I would first like to introduce a member of the Board of Directors of the Court Challenges Program of Canada, Ms. Bonnie Morton, and the Executive Director of the program, Mr. Noël Badiou.

I'd like to thank the members of the committee for having us here this morning for us to make a few comments about the program. I know that in the last few months, a number of things have been said about this program. You have received a lot of information, and a number of people have made presentations. So it's not necessary for me to go back over the whole history of this program and how it came into being.

I believe you have received a document that we prepared for you. There are just a few things that need to be said. For example, the concept of justice, in our opinion, necessarily includes access to justice. Having rights is not enough, you also have to be able to exercise them.

The Court Challenges Program is but one of these programs that the government of Canada and/or the provinces and territories support. Various kinds of funding programs ensure access to justice. However, this one was extremely important to all Canadians, particularly those in official language minorities and those in historically disadvantaged groups, including those in the Charter of Rights and Freedoms.

A democratic system involves majority rule. We understand that, but defending minority rights is the reason why there has to be a charter to protect those rights from the whims of the majority. It's important to uphold these principles in Canada.

When the program was abolished, the government said that it did not provide value for money. To date, we have not been told how it failed to provide value for money. No one has really provided us with any justification for this decision. In fact, we were never even notified that the program was under review, nor have we ever seen the findings of that review.

Suffice it to say that in 1997 and 2003, reviews of our program were conducted and the findings were quite clear. Both times, it was found to be effective and accountable, providing Canadian taxpayers with value for their money. Between 2003 and 2006, I'm not exactly sure what happened or where the idea came from that the program was no longer providing value for money in Canada.

Canadians have made remarkable progress in terms of rights, and I would like to mention at least a few of those results. For Canadians in official language minority communities, this program has made possible major changes that never could have been accomplished without it.

In its existence, over 1,200 cases have been heard thanks to this program, and one third of them have had to do with language rights. There was, for example, the Doucet-Boudreau case in Nova Scotia, involving the section 23 Charter education rights of the Acadian minority. This case reached the Supreme Court of Canada, which upheld the trial decision permitting more effective oversight of the government's implementation of these rights. Even when the government decided to give them the right to have their own schools, it was taking so long that the judge reserved the right to go back and see whether the government had indeed respected the Charter. That was an extremely important decision because it enabled the court to monitor the implementation of official language minority rights.

In the Montfort Hospital case, you've all heard about that one, there was further elaboration on the recognition on an unwritten constitutional principle regarding the protection of minority rights. When you have things for the minority, you really have to consult that minority, and when you take away an institution, you really have to consider the impact that could have on the vitality of the community.

Finally, there's the establishment of adequate facilities equal to those of the majority language community. There are now schools and school boards in all provinces and territories of Canada. When I started teaching, there wasn't even a French-language school board in Ontario. Since then, we have seen all over, in all provinces and territories, significant change.

There is still some territory to be explored in the area of minority language rights, and this can be seen now, for example, with the Caron case in Alberta and the education case in the Northwest Territories. It's important for cases like those to make it all the way up to the highest court, the Supreme Court of Canada. It's a matter of equality rights.

I would ask Ms. Morton to say a few things to you about cases primarily involving equality rights.

[Bonnie Morton, Member of the Board of Directors, Court Challenges Program of Canada]

I'd like to start off by saying, in case nobody is aware of it, that this is the 25th anniversary of the Charter of Rights and Freedoms. For that Charter of Rights and Freedoms to become a real, living document, we actually have to have access to it to use it as a domestic remedy when our constitutional rights are being violated.

Since 1985 we've had the right to protect equality rights. Section 15 of the Charter of Rights and Freedoms provides the guarantees for equality before and under the law for all people in Canada. This guarantee isn't just for those who can afford to go into the courts; this guarantee is also to protect disadvantaged groups who probably wouldn't be able to get there. Aboriginal, disability, and women's groups are just a few of the groups that have actually accessed funding from the court challenges program. This funding made it possible for these disadvantaged groups to have access to justice and to ensure that their equality rights were protected.

I'd like to make reference to three cases that really show how they've actually expanded what the concept of rights is. I think you also need to understand that if we're going to have rights in the Charter of Rights and Freedoms...for it to be a living document, it has to grow with us as a society. That means our rights will also grow, and that's what the Constitution protects.

There's the Kevin Rollason case--and if I'm pronouncing anybody's name wrong, I apologize. He was the father of a young girl who was born with Down's syndrome and had life-threatening cardiac disease. He successfully challenged the employment insurance program's failure to provide full parental leave benefits to parents of children requiring a long-term stay in hospital.

Then there were the Misquadis. They were off-reserve, rural, and urban aboriginal communities that successfully challenged their exclusion from federal aboriginal human resources development agreements designed to allow aboriginal communities to create and implement employment and training programs to ensure job stability, even for those who did not live on reserve.

Then there was the Michael Hendricks and René LeBoeuf case. They were a Quebec-based same-sex couple who successfully challenged section 5 of the federal harmonization act, which declared marriage to be between a man and a woman only in Quebec.

I'd like to say here and now that these cases and many like them that received court challenges funding actually helped to define the definition and expand the definition of what equality rights really are in this country.

I'd like to end by saying that our rights become stagnant if we have absolutely no way of ensuring that we're being protected through our Constitution, that way being the Charter of Rights and Freedoms. As soon as our rights become stagnant, so does that document called our Constitution, the Charter of Rights and Freedoms.

I'm here to ask each and every one of you to ensure that our rights and our Charter of Rights and Freedoms don't become stagnant in this country and to reinstate the funding to the court challenges program.

[Guy Matte]

I would also like to ask the executive director of the program to touch on some of the questions raised by members of the committee and how we believe these should be dealt with.

[Noël Badiou, Executive Director, Court Challenges Program of Canada]

Good morning.

A number of questions have been raised by witnesses before this committee, and a number of our comments are included in our brief. I would like to make a few comments.

With respect to the concern that only one side of an issue is funded by the program, we should remember that the original intention in creating the CCP was to provide funding for test cases under the equality and language provisions of the Charter and Constitution.

These equality and language provisions, by their very nature and wording, are meant to expand these fundamental rights. The idea is for everyone to be equal before and under the law and also to have access to official language services. The very notion under these provisions is inclusiveness; challenges under these provisions would naturally seek to expand the number of people who can participate. This is what has driven the funding decisions under the program. Allusions to the funding under the CCP as being too narrow a portal are exaggerated, as the CCP is about granting a voice to those who do not have one in the first place. It is not about exclusion, but rather about providing a means of access and justice.

In reply to the concern that only one side of an issue is funded by the program, it is important to remember this purpose: the program was meant to provide access to justice for a specific demographic; anyone opposed to the challenge would in fact be supporting the government, which has the ability (and has done so in the past) to bring the perspectives and arguments of these supporting groups before the courts.

The program is meant to provide a balance and help to level the playing field in the sense that it provides funding to groups and individuals who would not otherwise have a voice as the government is not representing them.

It would be counter-productive to support cases that would seriously jeopardize the rights of a group that is supposed to be protected by equality and language rights. Far from being just a matter of differing visions of equality, as our critics claim, the program refuses to fund cases that could likely undermine the equality and language rights of these protected groups.

The second issue I would like to raise is why governments should fund individuals to launch court challenges against the government.

The concept of justice, as Mr. Matte said earlier, necessarily includes access to justice. And as Prof. Lorne Sossin of the University of Toronto has noted, access to justice requires resources. Ensuring adequate resources for the people of Canada to obtain access to the courts is therefore essential for promoting justice and creating a sound civil society.

Several government-funded litigation programs exist, all based on this principle. For example, there's the Test Case Funding Program of Indian and Northern Affairs Canada, the Aboriginal Rights Court Challenges Program of the Northwest Territories, legal aid programs for criminal cases involving incarceration, legal aid programs for civil cases, primarily family law, and other special provincial legal aid programs aimed at assisting disadvantaged individuals, related to provincial issues.

So there are already government-funded programs that help Canadians challenge certain laws or government practices. The CCP was but one of such programs. It focused specifically on official language rights and equality rights under the Charter and Constitution.

The CCP was meant to provide access to justice for Canada's historically disadvantaged—those who are most vulnerable to marginalization and exclusion from full participation in Canadian society—who are trying to claim their full and proper place in Canada. Without this access to justice, these disempowered groups and individuals will no longer have a voice in their efforts to seek equality and recognition.

The final point I'd like to address is with regard to conflict of interest. The court challenges program of Canada is keenly aware of conflict of interest. Over the years it has reviewed and revised its conflict of interest policy. Many members of the board, panels, committees, and staff are lawyers and are accordingly governed by their respective law societies and are subject to strict conflict of interest rules. Their current policy reflects a very high standard for ensuring that no one on any of the CCP's committees can receive either a direct or an indirect benefit in the use of public funds. We have attached the program's conflict of interest policy for your information, and we'd be happy to answer any questions about it.

I would add that the structure of the court challenges program is such that the decision-making panels are independent of the board. The board looks after the administrative aspect of the program while the decision-making panels look after the actual funding of applications. The board is not privy to the applications received, nor is it to the decisions that are made.

Further, the members appointed to the panels are chosen primarily for their expertise in equality or language rights. Secondary considerations relate to having panels that are diverse and regionally represented. I can add that regional representation and diversity are also looked at in composition of the board.

As an additional form of accountability, the court challenges program regularly reports the names and biographies of each member on the board, panels, and staff, both in its annual reports and on its website. This means there's an increase in transparency as the court challenges program wants to fully account for everything it is doing and who is doing it, which ultimately is for the benefit of Canadian society as a whole. While not everyone may like the court challenges program, it has resulted in providing greater equality and official language rights services to Canadians.

[Guy Matte]

To conclude, Mr. Chairman, on behalf of the board of directors and members of the program, we ask that the decision to abolish the Court Challenges Program be reversed. In the name of access to justice, we ask this committee to call for the full restoration of funding to the Court Challenges Program as it was prior to September 26, 2006.

Thank you, Mr. Chairman.

[The Chair, Conservative, Gary Schellenberger]

Thank you very much for your presentations.

I've been very lenient about time, at least on the first round. I think on the first round, for questions and answers here today, we'll go for seven minutes. That's primarily what I've done for questions and answers, so on the first round at least we'll go for seven minutes and then maybe we'll go to five after that.

Mr. Bélanger, I think you're first.

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

Thank you, Mr. Chairman.

First of all, I'd like to congratulate Mr. Matte and his two colleagues here this morning on the quality of the document we have received. I had time to skim through it and I must say it appears to provide exactly the explanations we wanted of the operation of the Court Challenges Program, its structure and the need for it in the broader context of a healthy democratic society. I'd like to thank you for the quality of this document and I hope my colleagues will think to ensure that it's included in a report to the House, because it would benefit all parliamentarians to read it.

I'm going to ask three short questions in order to clarify certain things once and for all.

When the Prime Minister and one of his ministers stated their reasons in the House for cancelling the Court Challenges Program, they said they were sick and tired of paying for Liberal lawyers. When asked whether the political affiliation of the lawyer they chose was a factor, every witness has said no.

That's also what you seem to be saying in your brief, but could you confirm that the lawyers' political affiliation was in no way a factor as far as the Court Challenges Program was concerned?

[Guy Matte]

I can assure you of that. As a matter of fact, the program plays no role whatsoever in the choice of counsel. The applicants are the ones who choose the lawyers they are going to work with. We fund cases, and whether or not there is any political affiliation is none of our concern. That is not one of the selection criteria, and I'm sure the lawyers in various cases have been of all political stripes.

It's not our problem, and we've never even asked the question.

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

Thank you.

So I'm satisfied, Mr. Chair, that the reason given by the Prime Minister was bogus and that the notion of cancelling the program in order not to fund Liberal lawyers is indeed a fallacy.

The second area is a matter of conflicts, and those have been raised during the hearings. In particular, I believe Madam Morton mentioned one of these sources of conflicts.

You were a member of one of the agencies that received funding and were involved in some way, shape or form with the court challenges program. There was a hint that you might have been putting yourself in a situation of conflict. Would you care to comment on that?

[Bonnie Morton]

I definitely would like to comment on that.

I'm a member of a number of organizations. The organization that actually gave the presentation was the National Anti-Poverty Organization. I have been, in the past, the chairperson of NAPO. I am still a member of NAPO, a paying member because I've grown up in poverty, I still have family living in poverty, and I support the initiatives of that organization. I understand that under our Constitution I have the right of association, and that's protected.

I guess what I'd like to do is to address what was said.

Mr. Warkentin, the only thing that was actually truthful in what you said was that you had not met me. You don't know me. You put an attack directly on my integrity and my honesty, and you left that impression with the public. These are public hearings, and I have what you said right here, sir. I think it's unfair. If you're looking at the future of an organization, you don't attack the people within it unless you actually have proof that they have done something wrong. And you don't even assume that there is a possibility that they have done anything wrong. I think we all know what the word “assumption” means and can mean.

I would ask for an apology for the impression that this has left, because there's no way that I would ever step over the bounds of conflict of interest with the court challenges program, or any other program that I'm associated with in this country.

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

Thank you, Madam Morton. At the time the allegations or the innuendo was cast in this committee I felt rather uncomfortable. When I found out that you were coming--and I want to be clear that this was not prearranged--I was very happy, and I'm glad that you said what you said, because I actually accept that the structures created by the court challenges program are as transparent as can be and devoid of any possible conflict. On top of that, as has just been pointed out, all of the legal participants in the program have their own codes through their societies to deal with. So I thought it was rather unfair for you, on you, and unfair in general, to cast aspersions of conflict of interest to try to shroud the court challenges program in that. So thank you for clearing that up.

I want to also ask questions about the review that led to Canada's new government's decision to cancel this program. You referred to it in your submission. Could you please elaborate a bit on that?

Are you aware of how Canada's new government conducted its review leading to the decision to cancel the program?

[Noël Badiou]

I'd first like to clear something up about conflicts of interest. Keep in mind that under our structure, members of the board of directors, for example, Ms. Morton and Mr. Matte, don't make any financial decisions. There is a real separation between members of the board of directors and groups responsible for making those decisions. So Ms. Morton has had absolutely no opportunity to influence funding decisions.

That said, to answer your question about the review of the program, I will state categorically that no member of the staff, board of directors or any committee was consulted or informed in any way whatsoever that there would be a review. In fact, we would have been happy to answer any question or concern about this. But we weren't even given the opportunity to do that.

[Guy Matte]

Not only that, but what's more, we were not given any report that found that our program failed to provide taxpayers with value for their money.

[The Chair, Conservative, Gary Schellenberger]

Thank you very much. You are already past—

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

To conclude, I'd like to see if there's a—

[The Chair, Conservative, Gary Schellenberger]

I gave you seven minutes.

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

Is it possible, Mr. Chair, to have a copy of the review that the government did, leading to its decision? We asked for that as a committee. I'll bring that back.

[The Chair, Conservative, Gary Schellenberger]

You can bring that up after.

Ms. Bourgeois.

[Diane Bourgeois, Bloc, Terrebonne—Blainville, QC]

Thank you, Mr. Chairman.

Good morning, ladies and gentlemen.

I'm a visual person and I'd like you to explain to me exactly what the criteria or requirements are for a person to be eligible for the program.

[Noël Badiou]

Certainly.

The criteria for eligibility for funding under the Court Challenges Program are spelled out in the contribution agreement we gave you a copy of. The program is intended for historically-disadvantaged individuals and groups as well as official language minority communities.

The two aspects the funding criteria are based on, under the Charter or Constitution, are equality and language. The requirements are as follows. Applicants have to be individuals or groups. They can't get funding for cases that have already been brought before the courts. In addition, these individuals or organizations have to describe in writing their financial need. Finally, we cannot fund cases before the Canadian Human Rights Commission or the Office of the Commissioner of Official Languages.

[Diane Bourgeois, Bloc, Terrebonne—Blainville, QC]

Your critics, REAL Women, not to name names, have appeared before this committee. According to them, the equality criterion has not been met. We have here a summative evaluation of the program done by the Corporate Review Branch. Without breaching confidentiality, it says here that you may be able to explain to the committee and to Canadian Heritage the basis for your exclusion of REAL Women.

[Noël Badiou]

I will tell you quite honestly that REAL Women was not excluded per se: they never applied. Any Canadian can apply under the program, as long as they are eligible under the funding criteria set out in the contribution agreement. The purpose of the program is to assert and promote the rights to language equality. Funding requests therefore have to be in keeping with that.

[Diane Bourgeois, Bloc, Terrebonne—Blainville, QC]

Are you telling me that they never even applied? They testified before this committee that they made repeated applications.

[Noël Badiou]

They may have applied prior to 1994.