Canadian Heritage Committee on May 9th, 2024

[The Chair, Liberal, Hedy Fry]

Good morning, everyone.

I call this meeting to order.

Welcome to meeting number 119 of the House of Commons Standing Committee on Canadian Heritage.

I would like to acknowledge that this meeting is taking place on the unceded traditional territory of the Algonquin Anishinabe people.

Pursuant to the order of reference of Wednesday, November 22, 2023, the committee is resuming its study of Bill C‑316, An Act to amend the Department of Canadian Heritage Act (Court Challenges Program).

I just want to remind you again about the new rules we have. I want to remind members and other meeting participants of the following preventative measures to protect the hearing of the interpreters.

To prevent disruptive and potentially harmful audio feedback incidents that can cause injuries, all in-person participants are reminded to keep their earpiece away from the microphone at all times. When you're not using it, there's a decal on the desk right in front of you with a picture of an earpiece. Please put your earpiece face down on top of that when you're not using your earpiece.

Keep your cellphones away from the microphones, etc., because that causes feedback.

In the communiqué from the Speaker to all members on Monday, April 29, the following measures have been taken to help prevent audio feedback.

All earpieces have been replaced by a new model that reduces the probability of audio feedback. The new earpieces are black, and the old earpieces were grey. Please only use a black, approved earpiece. By default, all unused earpieces will be unplugged at the start of a meeting. When you are not using your earpiece, place it face down on the middle of the sticker on the right-hand side of your table.

There are some cards on the table to help you understand what the rules are with regard to feedback.

The room layout has been adjusted to increase the distance between committee members so that we're not causing each other audio feedback.

I want to thank you for your co-operation.

As you well know, today's meeting is being done in a hybrid format. I just want to remind you that you're not allowed to take photographs of what's going on in the room because it will already be on a website.

I'm informing the committee that all witnesses have completed the required connection tests in advance of the meeting.

Now I have a couple of general comments for the benefit of the members.

Please wait until I recognize you by name before speaking. Members in the room, please raise your hand if you wish to speak. Those in the chat can please press the hand icon there.

There is a little globe at the bottom of your screen that you can press for interpretation in English or French—the language of your choice.

We have some witnesses who have been here before. We have five witnesses. We have Geoffrey Sigalet, assistant professor. He will not be providing an opening statement because he already provided one when he was here earlier on. Then we have, from the Canadian Constitution Foundation, Josh Dehaas, counsel. Then we have François Côté, attorney and doctor of law with Droits collectifs Québec. The other witnesses—Bennett Jensen, director of legal, Egale Canada; and Humera Jabir, staff lawyer, West Coast Legal Education and Action Fund—will not be providing opening statements.

For the people making the statements, you have five minutes. It doesn't matter if you do not finish everything you want to say. When you're being asked questions by the members, you will be able to elaborate on some of the things that you didn't get to say.

I want to begin with Josh Dehaas, counsel for the Canadian Constitution Foundation.

Please begin, Mr. Dehaas. You have five minutes.

[Josh Dehaas, Counsel, Canadian Constitution Foundation]

Good afternoon, Madam Chair.

My name is Josh Dehaas. I'm counsel with the Canadian Constitution Foundation.

The CCF is a non-partisan legal charity dedicated to defending Canadians' rights and freedoms through education, communications and litigation.

The CCF is funded by individual donors across Canada who support our view of a freer and fairer Canada. One might think the CCF would be first in line to defend a program that hands out billions of dollars per year to fund litigation on constitutional and quasi-constitutional issues. After all, it's easier to apply for thousands of dollars of taxpayer funding than to build up a litigation fund $50 or $100 at a time. However, the CCF doesn't support the Court Challenges Program, and it should not be entrenched into law.

We don't support the Court Challenges Program for three reasons.

First, this program takes the debate about the meaning and content of rights out of Parliament and legislatures, where the debate more often belongs.

Second, the Court Challenges Program risks warping the Constitution through the ideological biases of the minister in charge of the program and those who decide which particular cases get funded.

Third, there are better ways to strengthen constitutional rights and freedoms than by appointing a small group of elite law professors to divert tax dollars to their preferred legal challenges.

Allow me to elaborate on my first point that the Court Challenges Program removes the debate on the meaning and content of rights from the proper venue.

The program encourages citizens to push for their preferred social policies through the courts rather than by convincing their fellow Canadians. One example of this is the medical assistance in dying case, Carter v. Canada. In Carter, the applicant had an irremediable medical condition that made it physically impossible for her to end her own life and therefore stop her suffering. The courts were well placed to decide whether the state prohibition on MAID violated Ms. Carter's rights. However, intervenors used that case to push for recognition of a broader right to euthanasia, which led to a rushed implementation of a MAID law that didn't properly take into account many stakeholder concerns.

Parliament was much better placed to decide this difficult policy question than the courts. MPs are democratically accountable, which forces them to consider a wide range of viewpoints. Parliament also has structures in place in its law-making, such as debate and committee hearings like this one. Courts, by contrast, are limited by the evidence and the facts that are before them and ill-equipped to take on this type of social policy-making. Yet, that's what the Court Challenges Program tends to encourage.

This brings me to my second point, which is that this program risks warping the Constitution through ideological biases.

The Court Challenges Program is administered by a management committee that consists mostly of academics and administrators from the University of Ottawa. Despite the program making decisions about which lawsuits are of such national importance that they ought to be funded by all Canadian taxpayers, the program is overseen by a small group of academics and administrators working inside the Ottawa bubble. The seven expert panellists, who make the case-by-case funding decisions, are also drawn from an elite group of legal academics and human rights experts; they don't represent the breadth of Canadian viewpoints of the law or of which issues are of national importance. The current panel, for example, consists of several legal progressives, but no apparent legal conservatives. That means a tiny clique of left-leaning academics is giving out millions of taxpayer dollars each year to decide which proposed constitutional challenges are more likely to be heard.

The ministers who have overseen the program in recent years appear to have appointed mostly people who share their viewpoint on the Constitution and are more likely to fund cases that are more likely to push the constitutional jurisprudence in the direction they want it to go. The same risk exists with a future Conservative government, whose ministers might be tempted to appoint only legal conservatives, thereby warping the jurisprudence in a different direction.

The only way to avoid this sort of political bias is to abolish the program entirely.

This brings me to my third and final point. There are better ways to ensure the Constitution is respected. First, politicians could ensure that judges are appointed in a timely manner so that those—

[The Chair, Liberal, Hedy Fry]

You have 30 seconds.

[Josh Dehaas]

—facing potential violations of their rights can have their cases heard in a timely fashion.

Second, politicians could be braver about defending rights and freedoms by proposing rights-protecting legislation, by speaking out when other politicians propose rights-infringing laws or by intervening in cases.

Third, and most importantly, rather than taking millions of dollars each year out of the pockets of Canadians so that an elite group of legal experts can direct those funds to their preferred legal challenges, parliamentarians can ensure that rights are respected by letting Canadians keep more of their hard-earned money so that they can direct it to civil society groups like the CCF that are fighting for their rights and freedoms.

[The Chair, Liberal, Hedy Fry]

Thank you.

I now go to Droits collectifs Québec, with Mr. François Côté, attorney and doctor of law.

You have five minutes, please, Monsieur Côté.

[The Clerk of the Committee, Ms. Geneviève Desjardins]

You're on mute, Mr. Côté.

[The Chair, Liberal, Hedy Fry]

There is a technical issue.

We will suspend for a second while we check what's going on here.

[The Chair, Liberal, Hedy Fry]

We'll resume the meeting.

Monsieur Côté, you have five minutes.

[François Côté, Attorney and Doctor of Law, Droits collectifs Québec]

Thank you, Madam Chair.

Before we begin, I would like to recognize and salute the previous intervention by my colleague, Mr. Dehaas, which was very enlightening.

Madam Chair, members of Parliament, distinguished committee members, it's a privilege for Droits collectifs Québec to appear before the Standing Committee on Canadian Heritage to share our thoughts on Bill C‑316.

Droits collectifs Québec is an independent civil society organization whose mission is to contribute to the defence of collective rights in Quebec, particularly citizens' linguistic and constitutional rights.

Our non-partisan organization is active in public education, social mobilization, political representation and especially legal action.

In fact, we're frequently called upon to intervene before the courts in defence of fundamental rights, for or on behalf of Quebec litigants. As a major civil participant in the defence of rights and access to justice, Droits collectifs Québec brings its extensive knowledge of the field to its testimony before this committee. Specifically, we interact directly with the court challenges program and its funding application process. We're here because we have first-hand knowledge of and direct experience with the subject matter of this bill.

Justice is blind, but it is not free, unfortunately. What is a constitutional guarantee worth to people whose rights are violated and who would have to spend $100,000 on legal counsel and fees to have those rights upheld by the court, money they simply do not have?

To ensure access to justice, as well as to recognize and offset the significant costs associated with constitutional litigation, the federal government created the court challenges program in 1978. It's a neutral and independent funding program designed to financially assist Canadian citizens in asserting certain constitutional rights, language rights and human rights before the courts.

The court challenges program has evolved over the years, but it has always been a financial support program controlled by the executive branch of government. It has therefore always had the flexibility to respond to changing economic winds, but it has always been vulnerable to political winds. The court challenges program has been cancelled, restored, cancelled and restored a number of times since the 1990s.

Now, Bill C‑316 proposes to enshrine the program in Canadian law. Some might say that this is a way to avoid leaving it at the mercy of the next government in power. Droits collectifs Québec will not comment on the political implications of this move, but our organization supports the initiative in Bill C‑316 to codify the program. However, two important aspects still need to be improved.

Droits collectifs Québec welcomes the move to codify a court challenges program that can lead to challenges to national laws and policies and to submit it to the House of Commons and to democratic debate. However, there's the matter of transparency, and the preamble of Bill C‑316 talks about holding the government to account. Wouldn't it make sense for that to apply to the administration of the court challenges program funds themselves?

Let's not lose sight of the fact that a constitutional challenge means challenging the validity of federal or provincial laws. This program uses public funds to change laws and policies. Knowing what's being done with that money and which causes it is funding, while respecting party confidentiality, is a matter of public interest.

However, the court challenges program does not currently provide any details about how its funds are distributed. It funds dozens of constitutional challenges to the tune of $3 million per year, but no information is publicly available to indicate which cases get that funding.

The parties' confidentiality obviously has to be respected, but it is in no way a breach of confidentiality to say that a given case in a given district, A v B, file number 12345, concerning a given constitutional right, received a given amount of funding. No confidential information would be disclosed, and a crucial transparency objective would be achieved.

As such, we believe that Bill C‑316 must be amended to add an accountability element to the court challenges program—

[The Chair, Liberal, Hedy Fry]

You have 20 seconds, Mr. Côté.

[François Côté]

—so that it provides at least a summary of the cases that are funded.

Then there's an issue related to the division of powers. The court challenges program should in no way be used to fund challenges to provincial legislation.

The court challenges program should be used exclusively for federal laws and policies. The federal government can legitimately subject its own laws to civil oversight and provide funding through its own grants, but there is something deeply disturbing—

[The Chair, Liberal, Hedy Fry]

Thank you, Mr. Côté.

I'm going to ask you to wrap up that sentence.

[François Côté]

Thank you very much, Madam Chair.

[The Chair, Liberal, Hedy Fry]

You will have an opportunity to expand later on, thanks.

I want to thank the witnesses for their presentations.

We're now going to the question-and-answer segment. The six minutes include a question and the answer. I'd like everybody to be as succinct as they can, please, so we can get more questions in.

We begin with the Conservatives and Rachael Thomas.

Mrs. Thomas, you have six minutes.

[Rachael Thomas, Conservative, Lethbridge, AB]

Thank you.

My first question will go to Mr. Dehaas.

In your opening remarks, you said that the only way to avoid partisanship within the Court Challenges Program would be to abolish it altogether. I'm curious if you can expand a little bit more as to why there wouldn't be another way that it could perhaps be amended or revised to achieve that end.

[Josh Dehaas]

I don't believe that merely amending the program would fix the concerns about bias, because, at the end of the day, particular cases that get funded would always be chosen by a minister. If you did not have a court challenges program, instead you would have a situation where individuals choose which particular civil society organizations they wish to support with their own funding. That's why I believe that reform is not the way to go.

[Rachael Thomas, Conservative, Lethbridge, AB]

Thank you.

I have a follow-up question then to Mr. Sigalet. Would you agree or might there be changes or amendments that you would suggest?

[Geoffrey Sigalet, Assistant Professor, As an Individual]

I tend to agree. You have two different rights organizations here, one of which gets funding from the Court Challenges Program, the CCF, and one that is more radically progressive, Egale Canada, that probably receives funding from the Court Challenges Program. We're not sure about that because there's a lack of transparency. That already shows the kind of partisan charge here.

I would say that there is an extent to which Mr. Dehaas makes a great point, which is that if Pierre Poilievre wins the next election, then the Conservatives are in charge of this program and they reorganize it. We could put in institutional structures that require kind of bipartisan approval for lawsuits to go forward, and there are ways you could model that by requiring it to be multi-party, in that every party needs to approve a lawsuit before it goes forward. There could be some kind of formal rule like that, or every party gets to nominate one member of the board or something like that.

However, this is never going to fully work, because your party is never going to agree to the NDP and the Greens both getting to choose somebody and then there being a non-Conservative-picked majority on that committee. There are all kinds of problems that you're going to experience this way, and inevitably, there's going to be the temptation to rig it your way, to fund the kinds of cases that Conservatives care about.

The problem is that there's just always going to be this back and forth. The problem also comes in the devil in the details, the difficulty of properly designing an institution that gets bipartisan buy-in. That's just very difficult to organize. I'm not saying that it's impossible; I'm just saying that it's going to be very difficult.

[Rachael Thomas, Conservative, Lethbridge, AB]

Thank you, Mr. Sigalet.

In your opening remarks the other day, you commented on the origin of the Court Challenges Program. We know that it was originally created by Trudeau senior in order to challenge Quebec provincial laws. We know that this, of course, poses a risk to federalism in Canada. Can you comment further as to the impact of this program with respect to provinces and their jurisdiction?

[Geoffrey Sigalet]

There's a well-known article in Canadian political science by F.L. Morton called “The Effect of the Charter of Rights on Canadian Federalism”. It notes that this program is part of a kind of centralizing effect, where federally appointed judges decide rights cases that challenge provincial laws. The litigation that they see is influenced by the funding for different groups challenging federal funding through this program, for different groups challenging federal laws. It's kind of a sneaky way for the federal government to disallow provincial laws on that analysis. There's a mini-debate in political science about the extent to which that happens or doesn't happen.

Unfortunately, it makes it harder for us political scientists to have that debate properly when we can't tell what the program is funding. One key thing, like I said in my testimony, is that, whatever you do, make this bill transparent. Ensure transparency so we know how much federal funding Mr. Jensen's organization is getting to sue Saskatchewan, let's say. It then becomes public and more accountable.

[Rachael Thomas, Conservative, Lethbridge, AB]

Precisely. Thank you. I appreciate your comments.

Mr. Dehaas, I have a question for you concerning an article that was written by you in the National Post in 2019 entitled, “Why are we paying people to sue the government?” In there, you said, “giving money to lawyers to sue the government is a backdoor way for Liberals to force the policy changes they want without the political risks.”

Can you expand on that further? Why is that a correct statement?

[Josh Dehaas]

Certainly.

With this program, as I mentioned before, at the end of the day it's the minister who appoints the seven experts for each part of the program, who decide which cases get funded.

If they appoint people that all have their own particular view of the Constitution, then it's more likely that they will get the cases before the courts that are more likely to lead to the particular policy outcomes that they prefer.

The way that should work in a democracy is that those particular politicians go to the people and say that this is what they think the law should be and then fight for those particular viewpoints.

We're talking about the program being used as a backdoor way to modify federalism. I think you can think of potential examples where there are provincial laws proposed and the federal government, for political reasons, doesn't want to upset people who support those particular provincial laws, but they disagree, so they just leave it to the Court Challenges Program to bring forward cases that are more likely to shift the jurisprudence in that particular direction.

[Rachael Thomas, Conservative, Lethbridge, AB]

Thank you very much for your time, gentlemen.

[The Chair, Liberal, Hedy Fry]

We now have Patricia Lattanzio.

You have six minutes.

[Patricia Lattanzio, Liberal, Saint-Léonard—Saint-Michel, QC]

Thank you, Madam Chair. Can you just let me know when I have one minute left? I'd like to share the floor with my colleague.

My question will be addressed to Ms. Humera Jabir.

We have heard statements from some of the witnesses who have hinted at the desire to restrict the use of the CCP by Quebec's English-speaking minority community.

In your view, Ms. Jabir, what may be the impacts of such a restriction?