Canadian Heritage Committee on May 2nd, 2024

[The Vice-Chair, Conservative, Kevin Waugh]

Let's move on, then. Who was it directed to, again? Was it Mr. Kingston?

[Taleeb Noormohamed, Liberal, Vancouver Granville, BC]

It was Mr. Jensen.

[The Vice-Chair, Conservative, Kevin Waugh]

Go ahead, Mr. Jensen, please.

[Bennett Jensen]

Thank you, Mr. Chair. Thank you for the question.

Simply put, it's devastating. It's devastating that we are in a moment in this country at which the notwithstanding clause is being used increasingly to limit the rights of the most vulnerable members of our society.

Our position at Egale is the same with respect to the notwithstanding clause as it is with respect to the Court Challenges Program, which is that it is for courts to determine the constitutionality of our legislation and that it is critical for our society, so that it can protect all of its members, that the courts retain that role.

[Taleeb Noormohamed, Liberal, Vancouver Granville, BC]

Thank you, Mr. Jensen.

Mr. Chair, I believe I have about one minute left.

[The Vice-Chair, Conservative, Kevin Waugh]

Very well. Go ahead.

[Taleeb Noormohamed, Liberal, Vancouver Granville, BC]

Perfect. Thank you, Mr. Chair.

Mr. Jensen, I'd like to go back again to a period of time when the Court Challenges Program was cut by the Harper government. You heard Mr. Brodie speak as well.

What have been the impacts on minority communities, the LGBTQ2S+ community and other communities, when they haven't had have access to that funding? What were some of the specific interactions that you might be able to speak to during that time in which the rights of minorities to defend themselves were substantially curtailed?

[Bennett Jensen]

Thank you for the question.

I may not be able to point to specific examples during that period because I wasn't yet in my role, but what I will say is that I cannot emphasize enough the barriers that exist in accessing the court system in general. What that means is that marginalized communities are simply without recourse.

As members will appreciate and as other witnesses have spoken to, litigation is tremendously expensive. The Court Challenges Program makes a dent in that, but it does not support all of the funding by any stretch. It simply means that rights can be violated by a majority government with no recourse for the minority.

Again, it has devastating consequences.

[The Vice-Chair, Conservative, Kevin Waugh]

Thank you, Mr. Jensen. We're over time now.

Thank you, Mr. Noormohamed.

We welcome, from the Bloc, Mr. Beaulieu. You have six minutes, sir.

[Mario Beaulieu, Bloc, La Pointe-de-l'Île, QC]

Thank you, Mr. Chair.

Thanks to our guests for being with us. My first question is for Mr. Brodie.

You wrote a long time ago that the court challenges program had become the legal arm of the federal government in attacking the Parti Québécois agenda. I think you referred to the charter of the French language.

Do you still think that's the case as regards the part on language rights in Quebec?

[Ian Brodie]

The charter of rights obviously applies to both the federal jurisdiction and provincial jurisdictions, as well as municipal jurisdictions. I think I can speak to the history of the program, and I think it's clear from the cabinet records that have now been released that Mr. Trudeau's government—the government of Pierre Trudeau, the first Trudeau—was seized with the issue of Bill 101, or what we now refer to as Bill 101, the Parti Québécois' language legislation. They were concerned that parts of that language legislation were unconstitutional or would cause other problems for the federal government, and they considered simply having the Attorney General launch a challenge on behalf of the federal government.

I think it's clear also from those records that the federal government cabinet considered using the disallowance power to disallow the legislation altogether but found that it would be in its political interest not to pursue either of those avenues for challenging the legislation, and therefore the Court Challenges Program was originally conceived of as a way of achieving what either disallowance or a lawsuit on behalf of the federal government against the Government of Quebec would achieve but without incurring the political costs that a direct challenge or direct use of the disallowance power would have meant.

[Mario Beaulieu, Bloc, La Pointe-de-l'Île, QC]

Quebec is a minority nation. Is it fair for the Canadian majority to impose programs like the court challenges program on the Quebec nation in order to defeat indirectly statutes that it passes to protect its linguistic specificity?

Everyone may answer that question.

[Ian Brodie]

Mr. Chair, in responding to Mr. Gourde, I think I made my views clear on the use of the federal spending power to challenge provincial legislation here.

[Mario Beaulieu, Bloc, La Pointe-de-l'Île, QC]

I'd like to add a comment on the subject.

We know that Bill 101 was passed in 1977 and that the court challenges program was introduced in 1978 to defeat the charter of the French language.

The Quebec government has recently passed legislation to reinforce Bill 101. I'll be careful here not to pass judgment on its validity. However, the budget of the court challenges program has suddenly been doubled for 2023–2024.

Can there be a connection between the two?

[Ian Brodie]

I don't know. I don't follow the debates about language legislation in Quebec any further. I suspect there are other people testifying today who might be able to better speak to that. I'm afraid I'm not in a very good position to respond.

[Mario Beaulieu, Bloc, La Pointe-de-l'Île, QC]

That's fine.

My next question is for Ms. Roy.

We want to make one thing quite clear: We aren't questioning the relevance of the court challenges program for francophone and Acadian communities or for human rights. However, how can you assure us that the court challenges program can be used to defend the rights of the francophone and Acadian communities without undermining French in Quebec? I don't know whether you have any thoughts on that.

[Liane Roy]

As you know, our role at the FCFA is really to represent the 2.8 million French-speaking Canadians who live outside Quebec. For those people, the court challenges program is crucially important to the health and survival of their community. That's really what I want to say today.

[Mario Beaulieu, Bloc, La Pointe-de-l'Île, QC]

On another topic, as we all know, the government doesn't disclose the organizations to which the court challenges program grants funding or report the cases that funding is used to defend. It's quite troubling to see this because these are public funds.

I know the FCFA had opposed this at one point. Let's suppose that information was disclosed once the cases had been heard. Would you be opposed to there being more transparency of that sort?

[Liane Roy]

We're always in favour of transparency regarding national programs.

In its current form, the court challenges program is required to prepare annual reports and is held to quite a high degree of accountability. Given those factors, I think enough information is being published or made public regarding the program for the moment.

[Mario Beaulieu, Bloc, La Pointe-de-l'Île, QC]

In any case—

[The Vice-Chair, Conservative, Kevin Waugh]

Thank you, Mr. Beaulieu. Your six minutes are up.

[Mario Beaulieu, Bloc, La Pointe-de-l'Île, QC]

Oh, it goes so quickly.

Thank you.

[The Vice-Chair, Conservative, Kevin Waugh]

We'll go to the New Democratic Party. Ms. Ashton, you have six minutes, please.

[Niki Ashton, NDP, Churchill—Keewatinook Aski, MB]

Thanks very much to the witnesses for being with us.

My first question is for Ms. Roy.

You clearly explained the gains that francophones across Canada have made thanks to the court challenges program.

I want to take another look at what happened in 2006. What would happen, for example, if the Canadian government one day decided to stop funding the court challenges program, as former prime minister Stephen Harper did in 2006? We know that the Commissioner of Official Languages at the time, Graham Fraser, declared that the decision violated the Official Languages Act.

What would the impact be on francophone rights if the program lost all its funding overnight?

[Liane Roy]

To save the committee's time today, I'll respond that I entirely agree with what Mr. Jensen said in response to a similar question earlier. I think the situation would be devastating for francophone communities.

As you know, the francophonie is now a rich and varied space that embraces individuals of various origins and orientations. It welcomes racialized persons, members of the LGBTQ2S+ community and other groups that constantly struggle to defend their rights. What we want is to guarantee all those groups fair access to justice. The court challenges program is therefore very important for us because it helps guarantee respect for the rights of our communities. It's very important that the court challenges program be maintained and that it continue.