Evidence of meeting #116 for Canadian Heritage in the 44th Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was funding.
A video is available from Parliament.
Liberal
Taleeb Noormohamed Liberal Vancouver Granville, BC
I just want to be clear. I thought Mr. Champoux said May 10, which we're fine with. May 20-something is too far away. May 10 we're fine with.
Conservative
Conservative
The Vice-Chair Conservative Kevin Waugh
Okay.
I'm going to suspend for two minutes as we get our guests, all five of them, arranged.
We'll be back in two minutes.
Conservative
The Vice-Chair Conservative Kevin Waugh
I call this meeting back to order.
Pursuant to the order of reference of Wednesday, November 22, 2023, the committee is resuming its consideration of Bill C-316.
I would like to welcome our witnesses. We have four on video conference, and we have one in the room with us this afternoon.
We have Mr. Ian Brodie, professor, from the University of Calgary; Guillaume Rousseau, law professor; and Geoff Sigalet, associate professor.
In the room, we have Marika Giles Samson, director, Court Challenges Program of Canada.
Thank you for coming.
Also on video conference, from the West Coast Legal Education and Action Fund in Vancouver, we have Humera Jabir.
As you all know, you have up to five minutes for opening remarks, after which we will proceed with rounds of questions.
Up first is Mr. Brodie.
I invite you to make an opening statement. As I mentioned, you have up to five minutes.
Ian Brodie Professor, University of Calgary, As an Individual
Thank you, Mr. Chair.
Thank you to members of the committee for the invitation to speak today.
I believe, despite my efforts over the last 25 years, I've become the leading published authority on the history of the Court Challenges Program.
As members of the committee will know, the Court Challenges Program has a checkered history. It was first established in 1978 with the intention of funding litigation against Quebec's language laws, particularly Bill 101, and by extension language laws in other provinces. Its mandate was expanded to cover what we would today call “social justice litigation” in 1985. It was then shuttered in 1992 as part of budget decisions that year. It was recreated a few years later. The federal government announced it would be cancelled again in 2006, although in fact the program never closed. It has carried on since then under a variety of sponsorships and in different organizational forms.
From 1985 until about 2000, when public interest litigation was in its infancy in Canada, the Court Challenges Program certainly helped boost that form of political organization in this country. Today, however, the Court Challenges Program probably finances a relatively small slice of Canada's public interest litigation. Most court cases about human rights, and certainly all the cases that try to limit government action, are financed by private means or by means of provincial legal aid programs without the help of the Court Challenges Program.
In my written submission, I recommend three amendments to the bill.
One is to stop the federally funded Court Challenges Program from financing court cases against provincial actions. This has been an issue since the program was created in 1978. If the federal government decides it should challenge provincial legislation or provincial programs, it can do that directly and transparently by means of litigation or other techniques.
A second amendment would prevent the program from funding cases that involve two or more sections of the Charter of Rights being in conflict with each other. There is no reason, in my submission, for the federal government to finance litigation that could, for example, limit freedom of expression or freedom of religion in the name of pursuing equality rights or vice versa.
Third, to head off the cycle of creation and cancellation, I recommend expanding the program's board to include nominees from all parties represented in the House of Commons. I think that would ensure the program would only fund cases that are genuinely beyond partisan disagreement.
On reflection since my submission, I would urge a fourth consideration, although it's not in the written submission. The public annual report of the program envisioned by proposed subsection 5.1(1) in the bill before you should include a list of all the cases that are funded and the amount of funding devoted to each of those cases.
The program used to allow the public to know what cases it funded and what cases it did not, but the Court Challenges Program now serves as a way of turning our tax dollars into untraceable dark money, and that should come to an end. The program should be reporting its funding decisions to the public in real time. If that's not feasible, it should report those decisions in its annual report.
Mr. Chair, that's all I have to say.
Conservative
The Vice-Chair Conservative Kevin Waugh
You left about a minute and 45 seconds, but that's good.
We'll move on to Mr. Guillaume Rousseau, law professor.
You have five minutes, sir.
Guillaume Rousseau Law Professor, As an Individual
Good afternoon.
Thank you for inviting me to talk to you about some of my language law research and, of course, my analysis of Bill C-316.
I often recall that in language law, there are two basic major models or principles: the principle of personality and the principle of territoriality. I am going to provide a brief overview of this issue before addressing the bill.
The principle of personality is simple. It offers individuals the freedom to choose among multiple languages for official use. This is the situation with official bilingualism or multilingualism. On the other hand, under the principle of territoriality, a single language is mandated, a single official language: the language of the majority.
A review of the scientific literature clearly shows that the territoriality model is really the only one that is able to enhance the vitality of a vulnerable minority language. The best example is the case of Canada, which is based on linguistic personality. The percentage who are francophone fell from 27.5% to approximately 22% between 1971 and 2021. In Switzerland, on the other hand, the francophone percentage rose from 18.4% to 22.9% between 1970 and 2017.
The reason I am telling you this is as follows. During the 1960s and 1970s, when there was a decline in French in Quebec, the Charter of the French Language and its territorial approach meant that a single official language was adopted. As a result, French made progress in the late 1970s and during the 1980s. After that, however, there came several judgments that had the effect of limiting the effect of the Charter of the French Language, which is also known as “Bill 101”, and striking it down in part. Since then, French has declined.
Why have there been so many judgments against the Charter of the French Language? As Prof. Brodie was saying, the Court Challenges Program was used to fund cases that led to judgments that struck down whole segments of the Charter of the French Language. This ultimately contributed to the decline of French.
I therefore propose that Bill C-13 be amended so that the program can no longer be used to challenge the Charter of the French Language and reverse the progress made by French. That would be logical. The 2021 white paper entitled English and French: Towards a substantive equality of official languages in Canada proposed that the federal government support French in the other provinces, as it has long done, and also support it in Quebec, rather than hurting it by funding challenges to the Charter of the French Language, for example. The amendment would be to that effect.
We could even go further to remedy this historic error. Funding challenges to Bill 101 like these was ultimately a historic error, so we might go further by proposing that actions in support of Bill 101 be funded, and this would help individuals who wanted to assert their language rights as provided in sections 2 to 6.2 of the Charter of the French Language. These are fundamental language rights. Obtaining federal funds to move forward would truly be a good thing, especially given that since 2022, with the new Charter of the French Language, fundamental language rights are now enforceable.
People really may bring proceedings to fill the gaps in the specific rules in Bill 101. I always offer the following example. Consumers of goods have the right to be served in French. In certain clothing stores in Quebec, however, the signs advertising clothing, particularly for children, are in English. No clothing is advertised in French. Could the right to be served in French, this fundamental language right of consumers, mean that clothing must always be advertised in French? We do not know, but it would be worth considering an action on that point being funded by the Court Challenges Program.
The purpose of this amendment would be so that someone could not challenge provincial legislation and certain groups of people would be able to use program funds to assert the language rights provided by provincial legislation, in particular the Charter of the French Language. The same logic should apply to Quebec's Act respecting the laicity of the State. Rather than challenging it and repeating the historic error surrounding Bill 101, the fund could be used to put into effect the right to secular public services provided by that law. That would really be preferable. It is what the amendments mean, fundamentally.
In addition, there are improvements to be made regarding governance. I found what Prof. Brodie proposed very interesting, in particular that various political parties nominate people to sit on the board that manages how funding is awarded.
We also think that if there could be even more Quebeckers—
Law Professor, As an Individual
Right.
We think that if there could be more Quebeckers, representatives of the Government of Quebec, that would be a very good thing.
As a final point, regarding transparency, once again, I support the proposals made by Prof. Brodie. I think that section 5.1 should go much further. Having a mere overview of the cases does not seem to me to be sufficient. The amendment should therefore—
Conservative
The Vice-Chair Conservative Kevin Waugh
Thank you, Mr. Rousseau. You've gone beyond your five minutes. We'll get a chance for questions and answers later.
Geoffrey Sigalet, assistant professor, is next.
You have five minutes, sir.
Geoffrey Sigalet Assistant Professor, As an Individual
Thank you very much for the invitation today.
I want to make just one remark, which is that I am not an associate professor; I'm an assistant professor.
Conservative
Assistant Professor, As an Individual
You're promoting me to general when I'm a lieutenant, a baby professor.
I want to keep it simple. My view is that it would be a mistake to entrench the Court Challenges Program, the CCP, into statutory law, even through a private member's bill like Bill C-316, because it's not appropriate for public money to support the program.
I have three basic reasons for this.
First, the way the CCP has been designed and implemented has ensured that it is subject to partisan contestation. The preamble of Bill C-316 partially acknowledges this by indicating the history of how the program was abolished and then reinstated, but what it leaves out is that it was abolished by Conservatives and reinstated by Liberals. In my view, this partisan contestation undermines the preamble's own stated aim that the program should be independently administered in a way that holds the government to account.
It's very difficult for a program that is understood, at least by one major political party, to be advancing the partisan agenda of another set of political actors to effectively hold the government to account over successive governments. In truth, overall, this threatens to mire Canadian courts in partisan contestation, which is something we want to avoid. We want to avoid politicizing our courts further.
Second, the Court Challenges Program was created to challenge provincial legislation, and [Technical difficulty—Editor] actually the courts whose judges are appointed by the federal government to strike down provincial laws. The risk it creates is that Canadian federalism will be eroded, and it is a particular threat for the Government of Quebec.
It should be noted that the program funded at least one of the applicants who is challenging Quebec's Bill 21 in the Hak case against the Attorney General of Quebec, and probably others.
Third, the very idea of the CCP is in tension with the charter statements program and the idea that the federal government and Parliament are themselves responsible and accountable for protecting the rights entrenched in the charter. The CCP partly outsources to unelected special interest groups the responsibility for ensuring that legislation complies with rights. If there is a human rights or language rights issue with Parliament's bills, then it is Parliament's responsibility to fix these issues before they become law. Indeed, in my view, that's what the charter statements program stands for: declarations about the consistency of bills that should be debated and taken responsibility for in Parliament.
All of these three reasons for objecting to the CCP and Bill C-316 are compounded by what both speakers before me have mentioned already: the lack of transparency surrounding the CCP.
The CCP claims solicitor-client privilege and does not reveal the names of intervenors and litigants that it supports. This lack of transparency is a big problem for those who want to defend the program and would like to see it entrenched in statutory law. If the supporters of the CCP wish to argue that Bill C-316 should enjoy partisan support from across different parties, then the first thing they should do is waive solicitor-client privilege and publish a comprehensive list of the interventions they find.
Since 2000, they have advertised only a select set of interventions and have not identified the intervenors in their annual reports, although you can figure out some of the intervenors by looking at the case and at who is an intervenor in them. The list that they actually publish is very select. First of all, this whole conception of solicitor-client privilege as an approach to transparency is contestable. Second, it's all waivable. The CCP can waive this privilege, and indeed there seem to be good reasons for doing so.
In truth, the 2016 report issued by the 2016 Standing Committee on Justice and Human Rights on access to justice recommended that the CCP waive this privilege and publish in annual reports all cases that received support from the program. That's recommendation 7 from that report. I'll note that this committee report is, in the words of the sponsor of this bill, one of the sets of recommendations that motivated the introduction of this bill. If we're going to take this bill seriously and the reasons for it seriously, you might want to take the other recommendations in that report seriously as well.
In my view, whatever we make of the political future of the CCP or the future of this bill, informed debate about its merits cannot really take place without transparency about the kinds of cases it funds.
With that, I'll conclude my remarks and wait for the questions. Thank you very much.
Conservative
The Vice-Chair Conservative Kevin Waugh
Thank you for the five minutes, Mr. Sigalet, assistant professor.
Now we go to the Court Challenges Program of Canada. In the room is Marika Giles Samson, director.
Go ahead. You have five minutes.
Marika Giles Samson Director, Court Challenges Program of Canada
Thank you, Mr. Chair.
I thank the committee for this invitation.
I wish to first gratefully acknowledge that most of the work of the Court Challenges Program, like that of this committee, takes place on the unceded traditional territory of the Algonquin Anishinabe people.
As the program operates bilingually, I will be delivering these remarks in both official languages.
By way of introduction, I have been director of the Court Challenges Program since 2020.
The purpose of the Court Challenges Program, or CCP, is to provide financial support in test cases of national importance relating to constitutional and quasi-constitutional rights involving official languages and human rights.
The program therefore has two objectives.
The first is to help more Canadians access the courts in order to assert the rights guaranteed to them by the Constitution Act, 1867, the Canadian Charter of Rights and Freedoms, and the Official Languages Act.
That objective addresses the fact that the financial costs associated with conducting constitutional cases are often an insurmountable barrier to access to justice.
The second objective of the program is to contribute to expanding our collective knowledge of the scope and meaning of the rights it enables people to assert.
By funding test cases of national significance, we aim to provide courts with the opportunity to advance the state of the law and contribute to our public understanding of the meaning of charter rights in Canada.
Given that most of the cases funded by the CCP seek to challenge laws, policies or practices of the federal government, it is operated at arm's length. As you know, it is currently being administered by the University of Ottawa, funded through a contribution agreement with the Minister of Canadian Heritage.
However, it is important for the committee to understand that while the program receives administrative and infrastructure support from the university—and by this I mean things like IT, accounting, payroll and facilities—the program functionally operates independently, particularly with respect to case selection. The University of Ottawa plays no role in selecting, nor has any access to information about the cases that the CPP funds.
Applications for funding are processed exclusively by CCP staff. The decisions about which cases are funded are made exclusively by two independent expert panels—the official language rights expert panel and the human rights expert panel—who are appointed through a process that was previously described by Mr. Dendooven in his testimony.
The expert panels make their decisions in accordance with their frame of reference. In making those decisions, they are careful to abide by the program's eligibility criteria and objectives.
The CCP's frames of reference, eligibility criteria and objectives are published on its website.
To assist the experts in doing their work efficiently, the program's legal staff verify that the applications are complete. They also prepare initial analyses in order to identify any eligibility problems and situate the case submitted in relation to the existing case law.
Everything that touches on the funding applications we receive, including the deliberative work of the expert panels and the ongoing management of funded cases, is considered highly confidential. This is to uphold the established rights of any prospective or current litigant to litigation privilege.
Briefly put, litigation privilege applies to any communications created for the dominant purpose of litigation when litigation is contemplated, anticipated or ongoing. This kind of privilege is intended to safeguard litigants' privacy rights so that the parties can go about mounting and pursuing their case free of interference. It's not the only form of legal privilege that applies to the work of the CCP, but it is the one that encompasses virtually all of the information that we hold about the applications we receive and the cases that we fund.
It is because of litigation privilege that the reporting requirements of the program are structured in the way that they currently are. The program does not report on the identity of funding beneficiaries until such time as the case in question is completed and all remedies exhausted.
Thus, our reporting requirements are drafted in a way that ensures transparency while respecting the rights guaranteed by litigation privilege of those who interact with the program. I would just add briefly that they are their rights to privilege, not the CCP's, and it is not for the CCP to waive them.
This program, however, does report on its activities. In December of every year, the program publishes an annual report on our website in which we report on how many applications were received and funded, provide anonymized summaries of some funded cases and provide information about the financial performance of the program.
In addition to the information contained in the annual report, the program provides financial and operational updates to the Department of Canadian Heritage several times a year, and once a year provides an updated, albeit anonymized, list of all files handled by the program.
It will be my pleasure to answer your questions in the official language of your choice.
Conservative
The Vice-Chair Conservative Kevin Waugh
Thank you, Marika.
Our final guest here for five minutes, by video conference from Vancouver, is Humera Jabir, who is a staff lawyer with West Coast Legal Education and Action Fund.
Go ahead, Humera, if you don't mind.
Humera Jabir Staff Lawyer, West Coast Legal Education and Action Fund
Thank you very much for having West Coast LEAF here today.
My name is Humera, and I use she/her pronouns. I am a staff lawyer working on the homelands of the Musqueam, Squamish and Tsleil-Waututh nations.
West Coast LEAF supports Bill C-316, which would provide the Court Challenges Program with a legislative home. We also seek two amendments to further strengthen access to the guarantees enshrined in constitutional law and official languages legislation.
Our position on this bill arises from our decades-long experience advancing justice and equality for women and people who experience gender-based discrimination. We were formed in 1985 to ensure that charter rights, particularly section 15 equality rights, would receive robust protection. We have appeared before courts and tribunals in many cases to advocate for equality rights and protection from discrimination.
In our current justice system, all litigation is costly, and constitutional litigation is even more so. Going to trial as well as bringing or facing an appeal can be financially draining and cost hundreds of thousands of dollars. Developing and litigating test cases that seek to move constitutional law forward, especially on systemic issues, may involve several years of litigation, likely at three levels of court, and support from dozens of lawyers, staff and expert witnesses.
The program as currently structured caps funding at $200,000 for trials, $50,000 for appeals and $20,000 for test case development. This funding is a significant help, even if it only partially covers the total costs of litigation. Without it, accessing justice would be even more of an uphill battle.
The program is also an important funding source for public interest litigants, many of whom are non-profit organizations with very limited resources. In the 2022 case of British Columbia (Attorney General) versus Council of Canadians with Disabilities, CCD, the Supreme Court of Canada recognized the critical role that public interest organizations play in supporting access to justice by bringing cases on behalf of people and communities who face social, economic or psychological barriers in litigating cases on their own.
The program also funds intervenors who join cases as third parties to share unique perspectives with the courts. For decades, intervenors have made notable contributions to the development of constitutional law by ensuring that the perspectives of those whose rights and interests are impacted by a case are considered by courts and that legal decisions are informed by broader implications. West Coast LEAF has also received funding from the program to partially support the litigation costs of interventions.
While we support Bill C-316 in principle, we also recommend two amendments to bolster access to justice in constitutional and language rights cases.
First, section 2 of the bill should be amended to include language indicating that the program will support claims arising from federal, provincial and territorial jurisdiction. Presently, funding is only available for cases connected to federal jurisdiction; however, provincial and territorial laws directly affect the largest number of Canadians, and areas of law falling within provincial jurisdiction, such as family law or access to social services, often disproportionately impact women, people of marginalized genders and people facing other intersecting barriers.
The program must also include cases engaging provincial or territorial jurisdiction if it is to achieve its goal of supporting cases of national significance, which is the language used in the bill. Andrews versus Law Society of B.C., the first ruling from the Supreme Court of Canada on section 15 equality rights, was a case concerning provincial law. Similarly, the CCD case mentioned earlier in my remarks was also provincial in scope, but required the Supreme Court of Canada to decide legal questions concerning public interest standing. These cases significantly impact constitutional jurisprudence, but they may not have met the program's criteria for national significance as they did not squarely engage federal jurisdiction.
Second, the bill should be amended to clarify the term “independently administered” and to specify how independence from government will be secured. Litigation is an adversarial process, and cases brought against the government will necessarily run counter to government's interests. The bill must prevent the possibility of interference in funding decisions through the pulling or limiting of funding.
We understand that many committee members have expressed a wish for greater transparency and accountability, and we agree that the process of funding applications must be transparent and accountable; however, we caution that this must not come at the expense of independence and must balance concerns around preserving litigation privilege.
To conclude, by adopting Bill C-316, this committee would be signalling respect for constitutional rights and the rule of law. The Supreme Court of Canada has stated that if people cannot challenge government actions in court, individuals cannot hold the state to account and the government will be or will be seen to be above the law. It also ruled that there cannot be rule of law without access to justice.
By enshrining the program in legislation, this committee would be supporting meaningful and consistent access to courts to check and balance government and to advance fundamental rights.
Thank you.
Conservative
The Vice-Chair Conservative Kevin Waugh
Thank you, Humera. That was right on five minutes.
We will go to the first round of questioning of six minutes. We'll start with the Conservative Party.
Go ahead, Ms. Thomas.
Conservative
Rachael Thomas Conservative Lethbridge, AB
Thank you.
Thank you to each of you for being with us, both in person and online. It's very much appreciated.
My first question goes to Mr. Brodie.
Clause 2 of the bill doesn't define “national significance”. Are you able to shed light on that today?
Professor, University of Calgary, As an Individual
Yes, Ms. Thomas, I think the term “cases of national significance” is a term of art here. It's the same wording used in the Supreme Court Act. It's directing the court to give a leave to appeal in the cases of national significance and has been used in the various iterations of the Court Challenges Program back to the 1970s.
My interpretation is that the program is intended to finance cases that would, in the program's view, eventually be eligible to find their way to the Supreme Court.
Conservative
Rachael Thomas Conservative Lethbridge, AB
Thank you, Mr. Brodie.
I am curious, however. Even though there's this definition of national significance and we have history to rely on in terms of what that means, when it comes down to it, the Court Challenges Program is actually not transparent in terms of which cases are funded and which ones are not. This seems to be problematic, to me at least, and I think to many others, because you are taking public dollars and using them to fund cases, but it's being done in secret. There seems to be this darkness around that, I suppose you could say.
Can you comment on that a little bit further?
Professor, University of Calgary, As an Individual
My interest in the program goes back to the 1990s, to my—
