Canadian Heritage Committee on Feb. 1st, 2007

[Guy Matte]

The new Court Challenges Program goes back to 1994. They may have applied before that. However, since 1994, they have not made any application.

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

The credibility of the witnesses is a little strange.

I would like to come back to the criteria dealing with people or organizations which traditionally have been underprivileged. Unless I am mistaken, you are basing what you say on the Universal Declaration of Human Rights of the United Nations. When you make decisions, do you also base them on the Convention on the Elimination of All Forms of Discrimination against Women or on the Erasmus-Dussault Report, which looked at the rights of native people? These documents are supposed to protect human rights in Canada when decisions are taken.

[Noël Badiou]

I can assure you that the people who will be appointed to those panels, that is, people who are experts in the areas of equality rights and language rights, have a very good knowledge of every fundamental document dealing with human rights, nationally and internationally. You can find on our website the names of the people who will sit on those panels and who will make decisions. They have a vast experience in the areas of equality rights and language rights.

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

Is this the first time you have been treated this way as far as departmental programs are concerned? In your opinion, is this the first time a program has been eliminated without consulting with officials and those in positions of authority?

[Guy Matte]

I don't know if this applies to them all, but during the last round, when our program was eliminated, other programs were as well. I presume that our experience is no different than what has happened in the past.

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

That's all, Mr. Chairman. I will come back later.

[The Chair, Conservative, Gary Schellenberger]

Thank you. Thank you very much.

We'll go to Mr. Angus.

[Charlie Angus, NDP, Timmins—James Bay, ON]

Thank you very much.

Thank you for the presentation you gave this morning.

I represent a region with a significant Franco-Ontarian population. As an anglophone, I know that minority rights were not acquired due to the efforts of the majority. Language rights and French schools were obtained because minorities fought for their convictions. And that fight is ongoing.

And I think this principle, to me, is at the very heart of the discussion we've been having here in terms of the conversation around the table.

The principle that has been raised by some of my Conservative colleagues and some of their witnesses is that if we allow the principle that minority rights need support to be enacted, to be defended, to be made real, that somehow that takes away from the rights of the majority. In other words, if we're going to have a court challenges program, then let's ensure that every single person, regardless of race, creed, or financial ability is able to access it. Otherwise, the few minority groups that do access these rights somehow have an unfair advantage over the majority. From the discussions we've had with witnesses, it seems to me that it strikes at the very heart of our notion of a Canadian system, in which we do recognize the value of certain rights that have to be protected and fought for.

One of the issues that came up was language rights. Again, in my region, there is the fight we've had for proper francophone services. Some of our witnesses have challenged that notion. Maybe it's unfair that we have certain language rights identified. What about, for example, the issue of Korean immigrants coming here? Why shouldn't they have the same rights?

I'm wondering if you think that this attack on the court challenges program is actually part of a broader view of how we should monitor rights in Canada and whether the attacks we've heard on court challenges--that it was conflict-of-interest-ridden, that it was going after crazy special interest groups, the kind of stuff I heard on talk radio--are actually part of a much simpler attack, which is the notion that certain minority rights need to be protected in this country in order to maintain the sense of what we have as a Canadian society.

[Guy Matte]

You have asked a question that is quite broad and you have asked for a generalization of what we're doing. Basically, we have to realize that there are rights that have been recognized by the charter, and this has value for Canadian society. I would even say it probably makes us stand apart from most of the rest of world. I go to Africa all the time. There are lots of constitutions, beautiful words, but nothing is respected over there in many, many countries. We saw it in Guinea recently.

If we're going to have rights, there has to be a means to ensure that these rights are not only protected but that they are clarified. In 1982, when the charter was created--let's talk about language rights--minority language rights were recognized in education. There was not one school board outside the border of Quebec that was for francophones, and this was put in.

Now I'm asking you, what does the fact that there are school boards in Canada now, French language school boards, in British Columbia--where I was Monday--or in Ontario, or elsewhere in our country, take away from the majority? What does the fact that there are French language schools take away from the majority? What does it take away when you recognize that aboriginal women who are off reserve have certain rights? What does it take away from the majority?

What it gives is the potential for all Canadians to participate as much as possible in the growth of this country. And when you allow Canadians, through the exercise of rights, to do this, I think we all get better. We get to be a better country and a better welcoming country. And that's why people are clamouring to get into this country, because we have those rights. Those rights are protected and clarified. We need a means to ensure that this is going to be a living document and that it will grow with our Canadian society.

[Charlie Angus, NDP, Timmins—James Bay, ON]

One of the other arguments that was laid out for us...well, we had two variations on the same argument. One came from the former Treasury Board minister, our new environment minister, Mr. Baird. He said we should not be paying money so that people can challenge government decisions. That was the very basis of his argument.

The argument we heard from, for example, our friends at REAL Women is that it's Parliament, not the courts, that decides the rights of people in this country. They laid out, as an example, their firm, undying opposition to same-sex marriage rights. I would think they would actually probably feel very comforted now that Parliament has twice voted to recognize those rights. Perhaps their concerns might be alleviated, in that Parliament has agreed on those rights.

On the question of whether the courts need to intervene to protect rights that Parliament is either unwilling to recognize or unwilling to put into law and practice, can you comment on how you see the role of the courts in having to defend minority rights in the vacuum of leadership at either parliamentary federal or provincial levels?

[Guy Matte]

First, let us say that we are Canadians. As Canadians, we value the Parliament of Canada and the rights and the powers it has to make laws. That's why we have things like the Charter of Rights and Freedoms. If we had no parliamentary system and no way of ensuring that these types of protections or these types of basic laws were to be made, if the Parliament had not been there, it would not exist today. So Parliament did the right thing. The parliamentarians, the MPs at the time, did the right thing by enacting such a basic law of the land.

But a law, as you know, cannot encompass every application in the field. It usually is a very broad knowledge. It gives rights and it gives concepts, and then people have to apply it, either through additional legislation, through regulation, or through application by civil servants or by other authorities.

When you get to that level, the application is an interpretation of what the basic law of the land, the charter, says. We certainly believe, as members of the board and as a program—and I think most Canadians believe this—that it is appropriate to go and check whether the application that was done of a particular right that was recognized is appropriate and well done.

Of all the cases that we have supported in the courts—as I said, about 1,200-something since our program was put in place—we've lost cases. People lost cases. But that's fair, because at least you know that in those particular cases, those applications were rightly done by government or by its agents. In other cases, the applicants won because things were not done properly or they could have been interpreted in a different fashion. That's why we have courts: to clarify these notions when we apply constitutional rights or any other application of Parliament.

We do have a basic respect for Parliament to make and enact laws. Somebody, somewhere, has to interpret, though, and these things we should be able to challenge.

[Charlie Angus, NDP, Timmins—James Bay, ON]

Thank you.

[The Chair, Conservative, Gary Schellenberger]

Thank you very much.

Mr. Fast, please.

[Ed Fast, Conservative, Abbotsford, BC]

Thank you, Mr. Chair.

My thanks to the three of you for appearing before us as witnesses.

Before I go on to my comments and questions, I do want to correct something that I believe was stated by Mr. Badiou in response to a question from Ms. Bourgeois on whether REAL Women had ever applied for funding under the court challenges program. I believe you said categorically no. In fact, we have just confirmed with that organization that they applied on four occasions, in 1989, 1990, 1991, and 1992, so what you said was incorrect.

[Noël Badiou]

That was the program before ours.

[Guy Matte]

That's what we said, because we started in 1994.

[Ed Fast, Conservative, Abbotsford, BC]

But you left that impression—

[Guy Matte]

No, I said 1994.

[Ed Fast, Conservative, Abbotsford, BC]

—and I think Ms. Bourgeois said it was interesting.

[Noël Badiou]

Yes.

[Ed Fast, Conservative, Abbotsford, BC]

I just wanted to clarify that, because we do want to deal with facts as opposed to speculation.

[Noël Badiou]

If I may just add something, what we were saying was that since the reinstatement of the program in 1994, we have not received an application from REAL Women. I think Mr. Matte did say that we did not know about anything prior to that time, because we don't have any records or access to those records prior to 1994.

[Ed Fast, Conservative, Abbotsford, BC]

I just want to make sure that there is no misunderstanding as to what we're dealing with. There are organizations that did apply and were refused—I think we've all accepted that's the reality of it.

What I'd like to say, too, is that for me the issue isn't a matter of taking away from the majority. I don't think that's the result of a court challenges program. So, Mr. Angus, hopefully that reassures you as to my position on that.

I think when you review the evaluation that was done in 2003, stakeholders who were complaining about the program raised two issues. One was the issue of balance and even-handedness.

I want to go back to the actual statement of purpose. When you refer to the executive summary, it states:

The main purpose of the Program is to clarify certain constitutional provisions relating to equality and language rights.

The word “clarify” is generally quite broad. It would include not only an expansive interpretation, it would also include a restrictive interpretation of the charter. But as the program morphed, it became something that focused almost exclusively on promoting and expanding charter rights.

There are many Canadians who have great difficulty accepting that only one side of an argument before the courts should be funded by a government, especially if both sides of the argument don't have the financial wherewithal to be able to carry a fight to the Supreme Court of Canada.

So that has been one of the objections, the other one being a perceived conflict of interest, which has been referred to in earlier discussions today.

I want to state that there is a difference between perceived and actual conflict. I don't believe I've ever made a suggestion that there was an actual conflict. However, there are those who also state that perception is reality.

For those reasons, I think there is some justification for Canadians to be concerned. The irony of it is, had there been balance and even-handedness in how the applications were handled and in how the program was delivered, to perhaps also provide funding to those who were promoting a more restrictive application of the charter, perhaps the program would still exist today.

Let me get to my questions.

I think all of you have read the evaluation, correct? And you're aware of the concerns that were raised by stakeholders. I would admit, many of the stakeholders, of course, supported the program, but there were significant numbers of stakeholders who had serious concerns with it.

In your discussions with those who fund the program, which ultimately is the federal government, did you ever raise these concerns with the government, that perhaps there should be a more balanced approach to the funding arrangements that were being made with organizations that were applying for these funds?

[Guy Matte]

There is a lot to your question. I'll try to cover as much as I can. My colleagues can help me on this one.

First of all, speaking of perceived conflict of interest, anything can be perceived as a conflict of interest. Even MPs can be perceived to be in conflict of interest when they make decisions: will this bring me support in my area; will it give me support to be re-elected? When you look at things, anybody can be perceived to be in a conflict of interest.

I have been here defending francophone rights practically all my life. Does being the chair of the board mean that I'm in a conflict of interest because I'm still promoting minority language rights in this country? Everyone can be perceived as being in some conflict of interest.

The important question is whether a person is in a conflict of interest. That's where people get into trouble. I can tell you that we check this very much within our organization, to make sure that nobody is in a conflict of interest and, as much as we can, is perceived as being in a conflict of interest. But you cannot stop the judgments of other people when they look at a program like ours; it's practically inevitable.

As to even-handedness, let us remind ourselves that we are never in an even-handed situation, because when people we fund go to the courts, they go against the federal government or one of the provincial governments that is using a huge amount of resources to thwart, stop, or put all kinds of hurdles in the road of the appellant seeking to get a clarification of their rights.

So even-handedness is a very unfair thing. If it were in place, then we would ask to get as much in the way of resources for those people who are appellants as the federal government is allowing itself to use. We see it right now, for example, in the court case of Caron in Alberta, where the provincial government is putting all kinds of hurdles in the road of Mr. Caron because they know the program is not going to exist anymore: let's make sure he has no means anymore to challenge the government in its application. That's one side; it's not even-handed on the side of the appellant.

As to your next question, related to whether we talked to the government about extending the program, no. We did not ask the government to please give us more money so we can fund REAL Women, for example, if that's what you're asking. The answer is no, we did not ask that.

What we're looking at in terms of the program is not a restrictive application of the rights. That's not our job. Our job is to see whether we can clarify and expand the rights of Canadians by the interpretation of the laws you have adopted. That's what we're doing.

If the federal government believes very strongly in what you've said, then create a program that is going to give money to REAL Women and other groups that are going to do this, or charge us with doing that too and give us double the money, and we'll give money to REAL Women to go on the other side, if that's what you believe in. But that's not the job that was given to us.

[Ed Fast, Conservative, Abbotsford, BC]

No, but the job you had was still to consider the applications that come in—