Justice Committee on Nov. 6th, 2006

[The Chair, Conservative, Art Hanger]

No, Minister, thank you very much for your time.

[Vic Toews, Conservative, Provencher, MB]

I will come back.

[The Chair, Conservative, Art Hanger]

The meeting is suspended for one minute.

[The Chair, Conservative, Art Hanger]

I call the meeting to order.

I would have the members take their seats, please. We're continuing our study of the effects of the abolition of the Law Commission of Canada and of the abolition of the Court Challenges Program on the development of minority rights.

Appearing before the committee, we have the Canadian Bar Association and the Court Challenges Program of Canada, along with the Centre for Cultural Renewal.

Thank you, folks, for appearing before our committee. You heard the minister's comments. It's good that you were sitting in the committee room at the time. I'm sure you will be responding to the minister's comments.

First, the Canadian Bar Association. Could you keep your comments fairly short, because I know the members have a number of questions they would like to ask, and if one of the witnesses would comment just on each particular group, it would be probably the best as far as time is concerned.

Who would like to present for the Canadian Bar Association?

[Tamra Thomson, Director, Legislation and Law Reform, Canadian Bar Association]

Thank you, Mr. Chair. I will start and then my colleague Ms. Buckley will take over--

[The Chair, Conservative, Art Hanger]

Very quickly then, Ms. Buckley, when you follow through.

Thank you.

[Tamra Thomson]

Mr. Chair, honourable members, the Canadian Bar Association appreciates the opportunity to speak to the committee today on two programs that are very dear to our mission, those being the Court Challenges Program and the Law Commission.

The Canadian Bar Association is a national organization of jurists that represents over 36,000 members across the country. Our mission includes the improvement of the law and of the administration of justice. It's within that purview that we have written to you, and the committee has a copy of our letter about the two programs on which we make our comments today.

Ms. Buckley is counsel to the Canadian Bar Association on a number of cases before the courts right now and I'm going to ask her to speak to the substance of each of the programs.

[Melina Buckley, Representative, Canadian Bar Association]

Mr. Chairman and honourable members, the Canadian Bar Association is here today to underscore the immense and unique contribution that both the Court Challenges Program and the Law Commission of Canada have made to good governance and the democratic process in Canada. I'm going to take the few minutes allotted to me to elaborate on that theme a little.

The Court Challenges Program's mandate is to ensure access to justice in two particular areas of constitutional rights, language rights and equality rights. The courts have drawn a very clear line between the constitutional principle of access to justice and to the courts and the rule of law. As we all know, the rule of law stands for the very important principle that the law governs our relations and gives us rights and obligations, and also that the government itself is constrained by law, and most particularly that the government is constrained by the supreme law, which is the Constitution. Without access to the courts, these rights remain meaningless, and the Court Challenges Program plays a fundamental role in ensuring access to the courts and access to constitutional rights.

Canadian courts have also long recognized that, in the words of the Supreme Court of Canada, it would be “practically perverse” to expect governments to both enforce and challenge legislation, and as a result our justice system has recognized and accommodated public interest litigation to fill this void, to fill this role, this government obligation that it cannot itself fulfill. The Court Challenges Program has very much facilitated public interest litigation in its mandate areas.

In a constitutional democracy like Canada's, constitutional rights litigation contributes to democratic values and citizenship, and it makes an important contribution to democratic dialogue about rights and their limits. As a society as a whole, we suffer when constitutional wrongs go unchecked.

To be meaningful, rights have to be exercised, and yet without assistance from the Court Challenges Program many individuals and groups cannot access the courts. The amounts funded by the Court Challenges Program are but a fraction of the full cost of a constitutional test case. Individuals and groups also contribute to these cases, and lawyers carry out the legal work on a reduced fee scale, or in many cases on a completely pro bono basis. Despite the fact that the Court Challenges Program is only contributing to a fraction of the costs of the case, that contribution is vital, and without it many of these important rights would remain mere paper guarantees. Without Court Challenges Program funding, many of these cases would never be launched, and the constitutional violations would continue unchecked.

The Court Challenges Program has been spectacularly successful, especially in the area of language rights. For almost 30 years now, the Court Challenges Program has funded cases in this area. As a result, we have a rich and vibrant jurisprudence that has meant meaningful rights for francophone communities outside of Quebec and for the anglophone community within Quebec. Even though there has been a lot of work, and very successfully done, there is yet a lot of work to be done. It is still very early days. We have to understand that human rights evolve over time and that this is an ongoing and continuing process.

The Court Challenges Program has also done a superb job in funding equality rights test cases. Of course, this has been for a much shorter period of time, and there's even more work to be done in that area.

I'm going to turn now to the Law Commission of Canada. The Law Commission of Canada has also played a huge role in improving the administration of justice and furthering the rule of law in Canada through its mandate, which is the renewal of law to ensure that it's relevant, responsive, effective, equally accessible to all, and just.

The CBA has long been supportive of a federal Law Commission. In fact, we've been on the record in support of such an institution since 1966. It is very much a part of modern government. It's a bit ironic that the Canadian government has cut the Law Commission while it's at the same time proposing and supporting such developments abroad in countries such as Bangladesh that are under much more serious economic conditions than Canada is.

The Law Commission of Canada has contributed to a democratic dialogue. It works through a very participatory process. It has established partnerships with institutions, including law schools, public policy fora, the CBA, and many other organizations. It promotes open and informed dialogue and citizenship engagement in all of its processes. While it's independent of the partisan process, it is a very important input into government policy and law-making.

I think what's really important and what I don't think was very clear in the earlier discussions that I overheard is that the Law Commission of Canada sets its agenda through consultation and develops its projects based on this public consultation, and through this process, it identifies pressing issues that are not being systematically addressed by others. So by very definition, it's playing a unique role in only dealing with issues that cannot be adequately addressed by other institutions. We should also keep in mind that the Ministry of Justice has a representative on the advisory committee to the Law Commission of Canada, so they too have a voice in the issues that are studied by the Law Commission.

The Law Commission takes a very innovative and multi-disciplinary approach to its research. It's not something that a busy government department can do on a day-to-day basis.

I'd like to mention in particular the indigenous legal traditions project, which is really just in its formative stages--or at least the first stage of that research was finished--but the Law Commission had important plans to consult and further that work, and that's really being cut off at a very unfortunate time. It's a project that would help to cultivate and refine aboriginal legal traditions in Canada and would help to address the very difficult situation that these communities face and would help to build and help rebuild the relationship between aboriginals and non-aboriginals within Canada.

I think what's important to realize is that even if there are no specific legislative changes that come out of this project, there will be a contribution to the way the country operates, and that law reform is much broader than just passing a bill or commenting on a bill; that law influences culture and influences institutions outside of that process.

We understand that the Minister of Justice and other members of the government have said that the CBA can carry on the Law Commission's work. This is simply wrong. This is not work that the CBA has the capacity to do. The CBA participates in law reform processes and contributes the perspective of the legal profession on law, the administration, and support of the rule of law, but we are not a research institution. It's completely unrealistic to think we could fill the void left by the elimination of the Law Commission of Canada. We are an organization with a different mandate. We have no funds for this task, and it's only through voluntary efforts that the CBA members, who are busy lawyers with full-time practices, do the important law reform work that they already do. You cannot ask us to do more. There is a big difference between commenting on a bill and carrying out substantive, long-term law reform work.

In our view, the Department of Justice is also obviously engaged in law reform, but it does not have the capacity to carry out the same type of work as the Law Commission of Canada does. In fact, I was working for the Canadian Bar Association full-time in 1992 when the Law Reform Commission was cut and for the five years before the new Law Commission was started. We worked very closely with the Department of Justice to try to fill the void, and we all agreed that it just could not be done by either of our institutions or working together.

The Law Commission of Canada has a unique role that's not filled by any other organization, whether publicly or privately funded. In particular, there's no independent organization that's accessible, permanent, and has the comprehensiveness to carry out the work that the Law Commission does.

In closing, the CBA would like to point out that the abolition of both the Court Challenges Program and the Law Commission will impoverish the quality of governance in Canada. All Canadians are impoverished by the short-term thinking that has led to the abrupt elimination of these two institutions, but it is the members of disadvantaged groups and minority groups that will feel the cuts the hardest. The abolition of these two programs serves to reinforce the marginalization and precariousness of the positions of the francophone community outside of Quebec, the anglophone community within Quebec, aboriginal persons, women, persons with disabilities, racial minorities, and other vulnerable groups protected by the Constitution.

The CBA urges you to take all steps available to you as individuals and as a committee responsible for justice and human rights to redress a terrible wrong that has been done.

Thank you.

[The Chair, Conservative, Art Hanger]

Concerning the Court Challenges Program of Canada, would the presenter be you, Mr. Norman?

[Prof. Ken Norman, Treasurer, Member of the Board of Directors, Court Challenges Program of Canada]

Yes, Mr. Chair.

My name is Ken Norman. I'm the treasurer of the Court Challenges Program. I sit on the board of directors of the program as the representative of the Council of Canadian Law Deans. I have with me our executive director, Noël Badiou.

Mr. Chair, honourable members, I want to talk first from our brief that's filed with you as to the purpose of the Court Challenges Program. The purpose is access to justice, and the rationale for our fund lies in the fact that access to justice requires resources. For sound civil society reasons, there are a number of government funding programs founded on this same rationale with regard to litigation. The Court Challenges Program is but one--or was but one--of such programs.

A year ago, the Canadian delegation appeared before the UN Human Rights Committee during the review of Canada's fifth report on the International Covenant on Civil and Political Rights. Focusing only on charter court challenges and leaving to one side such litigation funding programs as the test case funding program of Indian and Northern Affairs Canada, or the aboriginal rights Court Challenges Program of the Northwest Territories, the Canadian delegation explained the various circumstances in which charter issues may arise during government-funded litigation.

It offered examples such as criminal legal aid, civil litigation involving government or quasi-governmental actors, and individuals engaged in litigation with governmental actors over rights and access issues. The Canadian report proceeds to note that “the Department of Canadian Heritage also funds the Court Challenges Program (CCP), which provides financial assistance for test cases of national significance in order to clarify the rights of the official language minority communities and the equality rights of disadvantaged groups.” In this light, what sense, I ask you, can be made of Treasury Board presidentJohn Baird's comment justifying the funding chop to our program on September 25 of this year, that “I just don't think it made sense for the government to subsidize lawyers to challenge the government's own laws in court.”?

I come before you to ask that this singling out of the Court Challenges Program be reversed. In the name of access to justice, we ask that you call for the restoration of funding to the Court Challenges Program.

I'll now speak briefly to our history and our accomplishments.

The program was established in 1978, following important language rights cases that were pursued in the courts by individuals at great financial cost and personal expense. In view of the fundamental importance of the rights in question, it was recognized that there was a need for a program that would assist individuals from the official minority language groups in bringing forward cases to clarify their constitutional language rights. It was understood that there needed to be a mechanism through which those groups could have their rights recognized. Without such a mechanism, members of those groups would have little or no voice in seeing their rights recognized and respected.

Then in 1982, with the charter coming into effect, the mandate of the program was extended to include language rights under the charter. Then in 1985, with the equality provisions clicking into effect, the program's mandate was further expanded.

In sum, the program 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; and Canada's official minority language groups, who are also 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. Thus, there's no weight to the argument that the Court Challenges Program somehow failed in its mandate when it did not grant funding to those status quo groups seeking to intervene in support of a government's position.

I want to move to value and effectiveness, as this issue has been raised. In cutting the Court Challenges Program, the government said it did not provide “value for money”. We would be very interested to know on what basis this assertion was made. The program was never notified that it was undergoing a review. Neither staff nor board members were contacted or asked for any information about the program, so what was the nature of the review? What were its findings? Upon announcing the cut, the government did not tie its decision to any supposed findings of any such review.

There have been two formal public reviews of the program, one in 1997 and one in 2003. I will move to a couple of the points made in the 2003 evaluation, the more recent one.

The evaluation said the program is effectively managed. It also said: “The evaluation findings suggest that there are dimensions of the constitutional provisions covered by the Program that still require clarification and that, most probably, there will continue to be dimensions of the constitutional provisions that require clarification indefinitely.”

There are some additional points I'd ask the honourable members to consider. Our program is a small one, but it is national in scope. It is wholly administered by a small staff of eight people from a single office in Winnipeg, Manitoba. The administrative budget is relatively small when considering the importance of the issues funded and the national scope of the program.

Under the limitations established by the Court Challenges Program in administering funds, the real costs of taking a case forward are not even fully covered by any means. There is limited funding that, once granted, allows applicants to leverage the participation of very skilled and experienced lawyers who agree to work at a much lower hourly rate than their norm for some of the work and on a pro bono basis for other portions of their work.

On the impact of the program, our brief sets out some of the important cases. There is one in particular I want to highlight in the brief time I have available, and that's a case out of Prince Edward Island, a minority language rights case called Arsenault-Cameron v. Prince Edward Island, in which the Supreme Court of Canada makes the point and the link between the language funding side and the equality funding side of the program, that link being substantive equality. I quote from Arsenault-Cameron: “Section 23 is premised on the fact that substantive equality requires that official language minorities be treated differently, if necessary, according to their particular circumstances and needs, in order to provide them with a standard of education equivalent to that of the official language majority.” This idea of accommodation is at the heart of the idea of equality in section 15 as well.

In terms of the section 15 cases, contrary to the perception of some, equality challenges have rarely produced clear wins at the hands of the legal system. Funding from the program provides equality-seekers with an opportunity to keep their issues before the courts in the hope that over time the legal principles that they advance will be recognized by the courts. Furthermore, the issues brought before the courts can help to raise the profile of certain issues which can stimulate public debate and lead to legislative reform that advances human rights. The program provides the least powerful in society--disadvantaged groups--with a means to continue the dialogue, which they otherwise would not have.

Let me move to a final point, which is that the Court Challenges Program has been recognized and praised not just by the UN Human Rights Committee under the International Covenant on Civil and Political Rights, which I began my presentation by referring to, but also by the United Nations Committee on Economic, Social and Cultural Rights. As well, the former United Nations High Commissioner for Human Rights, Ms. Mary Robinson, has commented on the wonderful work of the Court Challenges Program and the uniqueness of it, and has stated that this type of program should be replicated in other countries.

Finally, we've had the charter in existence for about a generation. However, constitutional rights continue to evolve. One only has to look to the United States, where constitutional rights continue to be raised in the courts 200 years after their Bill of Rights was entrenched. Surely there's a continued need for our program, which provides some of the resources for disadvantaged Canadians to have access to justice.

Thank you.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Norman.

We'll hear the Centre for Cultural Renewal, Mr. Benson, please.

[Iain Benson, Executive Director, Centre for Cultural Renewal]

Thank you very much for inviting me here. I'm representing the Centre for Cultural Renewal, which has been going in Canada now for about 15 years. It's an independent think tank and involves a wide variety of people with a small staff. We do a lot of work in the area of pluralism, trying to determine what principles can be used to further the common life of Canadians.

My comments focus today primarily on constitutional development by litigation assistance. But my final recommendation for necessary changes will apply as well to the Law Commission questions before the standing committee, which I don't address in my substantive remarks. You'll all get a copy of my full remarks; because of the time restrictions now, I'm just going to touch on some of the key parts.

Constitutional litigation is in everyone's interest. No one group owns the Constitution, and no one set of aspirations controls how the Constitution will change and develop as it is interpreted over time. In an open society, the capacity for self-evaluation and criticism is a good thing. In that respect, having a system that permits evaluation of laws against the Constitution is to a certain extent healthy. Similarly, providing financial assistance to those who cannot afford litigation, if done fairly and appropriately, can also, with some important caveats, be a good thing.

I am not concerned today either to praise the Court Challenges Program as it was or to bury it; I am simply asking for your ears so that we can analyze some of the principles that might vivify constitutional assistance litigation going forward. I think very serious changes need to be made to the program as it's currently constructed.

The Court Challenges Program has had advisers of the highest ability and strategists of considerable brilliance. Its track record speaks for itself. Perhaps we now have, however, an opportunity to rethink what sorts of programs will serve the country best going forward. Programs will come and programs will go. What is buried as a dead duck at one point can sometimes rather quickly show the characteristics of a phoenix.

The effects of the program cuts lead to considerations well beyond the footprint of the previous program, in my submission. Those who wish continuance of the program as it is form one of the most powerful lobbies in Canada today, so I'd like to offer some principles that, it seems to me, ought to concern us all and be applied to considerations should such a program of financial assistance for constitutional litigation be reformulated or developed and moved on from where it currently sits, which is one of my strongest recommendations today.

Why should we be concerned about government-supported constitutional litigation and careful how such support is set up and who will decide applications before a program? It's often said in Canada that the relationship between the courts and the legislature is a dialogue. If that is true, then it is also true that in a further sense the debates within cases themselves are part of that dialogue. There is a dialogue and a debate about the nature of the Constitution carried on within each case, in a sense, and then between cases over time.

Society itself and the law that is part of it are dialogical. It does change over time, in part because of the debates and discussions and self-understandings that are part and parcel of our common lives together. Thus, in cases on any particular theme, as strategists well know, there are developments, and a good strategist chooses cases carefully with a view to obtaining the desired outcomes over time.

Because the result affects everyone, it's essential that the greatest access possible be given to citizens. Interpretation of the charter now, over two decades of it, has accomplished a great deal. Interpretation is an ongoing reality, and we're frequently told our Constitution is a living tree. It's useful to recall that trees are not usually found alone. They are not the only growing things, and second, they are dependent upon the soil that will nurture them. The garden too, in which that tree is a constitutional development stance, is a living reality; threaten the soil and you threaten the tree itself. Constitutional documents are words on paper unless the lived reality of the community breathes life into them in its day-to-day being.

Canada is not the Charter of Rights and the Charter of Rights is not Canada. This needs saying, because there are those—in fact, quite a few—who seem to speak as if Canada will be developed further and be based on the charter, which is shorthand for saying by the judiciary, or within the dialogue between legislature and courts. We must remember that there are other equally important dialogues at work, as I said a moment ago, and one of those is the dialogue within cases themselves, the very debate of principles that is located within each piece of litigation.

I want to move at this point to highlight what I think is the essence of my submission.

If we assume that courts are not merely necessary but are sufficient for the maintenance of a constitution over time, we assume too much about the role of law. That is the central point of my comments today. For any program of constitutional litigation assistance to be just, it must be open to everyone--not only to those challenging laws, but also to those defending them as well, or arguing against a particular sort of challenge. For example, there may be no law in an area in which a litigant may seek to have one, as was the case in the same-sex marriage cases, which hung up on the tenuous thread of the challenge to a common-law definition.

If constitutional litigation is going to affect everyone, then those who may need assistance in relation to that litigation do not come all neatly labelled as challengers, and therefore any program seeking to develop constitutional interpretation must do so on a neutral basis and not assist only one side of the argument. What is constitutional is not just what is new and challenging; it can also be what the Parliament and legislatures, federal and provincial, may have brought into place already.

As Canadian philosopher Charles Taylor has noted, judicial decisions are usually winner-take-all. Either you win or you lose. In particular, judicial decisions about rights tend to be conceived as all-or-nothing matters. The penchant to settle things judicially, further polarized by rival special interest campaigns, effectively cuts down the possibilities of compromise. When litigation is being used this way, however, because we are encouraging it to be used this way, it would make sense to ask what kind of equality is being pursued. What are we saying about that internal dialogue on issues of the day that should exist between citizens? To go to the courts on what amounts to this winner-take-all model that Charles Taylor expresses concerns about effectively tends to give one side of what can often be a two-sided discussion a victory, and that is not the way to produce a civil society that is functioning at its best over time.

My paper develops this theme in far greater detail than I can right now, but I'd like to turn to the question. It is this: how are we best to do this task of placing the charter in the proper linguistic, philosophical, historical, and religious tradition that the Supreme Court of Canada has told us it should be placed in if we do not do it with maximal inputs from the people and groups who can best tell us what these are? In one of the recommendations below, I argue that litigation is not the best way to accomplish the kinds of reflection best suited to the best kind of judicial decision, and that another approach needs to develop.

Constitutional rights are important, and the courts have a necessary role in defending them, particularly when the state is acting against individuals or groups, but it is a necessary role the courts have, not a sufficient one. The first period of work under the court challenge program and the first period of development under the Charter of Rights and Freedoms has shown us the development of jurisprudence, particularly in relation to equality rights, language rights, and so on; I'm going to suggest that the next period of development in Canada needs to look beyond a litigation framework for constitutional analysis. We need to start getting out of a new sectarianism of debates, largely political, between interest groups. I think we need to do that by making substantive measures that will bring into the same room the groups that have fundamental disagreement, because at the end of the day we as citizens live with radically opposed viewpoints and co-existent lives in the same country.

Therefore, here are my recommendations.

First, assistance should seek to best elucidate the merits of both challenges and defences to laws, since constitutional merit does not belong only to challengers.

Second, all citizen groups must have confidence in the fairness of any constitutional assistance program that's set up, particularly with regard to representative fairness. As far as practicable, it would make sense to involve those from a variety of different groups themselves, and we know from the history of litigation in this country over the past many years who those groups are. They should be the members of the board of advisers, or the members making decisions in a project like the Court Challenges Program--not just a selective group of law professors and certain activist groups, however excellent they may be.

Three, once the courts have granted intervenor status to groups in a constitutional litigation, funding assistance to a certain level should flow to all sides of that litigation, subject perhaps only to a means test principle. This flows from my first proposition, that constitutional development isn't just for the new. The judges, after all, determine that particular bodies have an interest and valid representative status in constitutional litigation. It should, therefore, follow that recourse to financial assistance is possible for not-for-profit groups, for registered charities, and for individuals who satisfy the means test.

Four, there is a need to clarify the role of litigation, participation, education, and advocacy in relation to charitable status. The Court Challenges Program itself brought a challenge to the Supreme Court of Canada, unsuccessfully, for a west coast women's advocacy group. I know of many other groups that share concerns about the deregistration, or the lack of registration, given to certain charities. There needs to be attention to that.

Five, and I think most significantly, I'm arguing that instead of focusing governmental moneys, federally or provincially, primarily on court challenges for some, we should consider establishing in Canada a constitutional forum for stakeholders that will benefit all Canadians. This constitutional forum would involve groups that are here today—for example, the CBA—representatives of law schools, representatives of religious organizations, labour organizations, aboriginal rights groups, women's groups, and linguistic rights associations, as well as representatives of sexual orientation activist groups, etc.

Only with a constitutional forum of this kind, which involves the actual groups that have the interest, can we see the kind of principled analysis developing that we need in Canada. My brief spells out how we failed that need miserably with respect to same-sex marriage, how we could have done much better, but that recourse to the method that was chosen in the courts and then with the marriage reference truncated what I hope will eventually be a proper analysis of the role of the state in relation to same-sex marriage.

There's a lot in my submission. I've gone slightly over time, and I apologize to my colleagues here, but those are my comments.

Thank you.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Benson.

Mr. Bagnell, you have five minutes.

[Larry Bagnell, Liberal, Yukon, YT]

Thank you.

The minister, when he was here a few minutes ago, carried on about this aboriginal report, asking why Liberals didn't do anything about it. He rather embarrassed himself, showing how little he knows. The report is not even out yet. It's just a working paper, and it hasn't come to Parliament.

When you make decisions to cut things like these two valuable programs, you should do it on evidence or evaluation or recommendations from the department. Some people are arguing this government is just doing it on ideological grounds instead of those. I want to follow that up.

Melina Buckley, you gave a tremendous speech. I don't know how anyone could say more or cut the program after that. But the minister suggested they were cutting things that were not providing value for money. I asked the department and the minister if he ever got evidence from the department, and you probably saw the response: there was no evidence or advice from the department that there was not value for money.

Where do you think he got advice that it was inefficient or ineffective? It didn't seem to be from the bar association.

[Melina Buckley]

I can't comment, obviously, on the decision-making process behind the cuts. I can certainly say that the Canadian Bar Association was not consulted and that in fact at our annual meeting, just prior to the cutting of the Court Challenges Program, we had reaffirmed our commitment to the Court Challenges Program, to the vitality of that institution in an access to justice framework, and in fact to expanding the program. The Canadian Bar Association has been on record since 1989 as saying that particularly in the area of equality rights there should be funding to challenge provincial laws and policies as well as federal ones.

So in whatever way the decision was made, it certainly didn't involve consultation with us.

As Professor Norman has already mentioned, the Court Challenges Program was just recently reviewed. As part of its contribution agreement before it's renewed every five years, there's a very thorough review process that goes on by an independent agency. I believe it took about six months to undertake that. Many people were contacted—critics of the program, independent advisers, and so on—and both times that the Court Challenges Program was reviewed it came out with glowing recommendations.

So it's difficult to see on what basis that decision was made. I'm also not aware of any actual review of the Law Commission's work that was done. And certainly the Canadian Bar Association would have been more than happy to participate in such a process.

[Larry Bagnell, Liberal, Yukon, YT]

It's astonishing. Where's the evidence they're making this decision on? The advice from the department is not to cut the program.

You just said the evaluation was remarkable. Commendation of the program should keep it going. So it's astounding that there's any suggestion to cut this.

Leaving that, the minister's second point was that it wasn't doing anything, that there were all sorts of other groups doing this. If they were all doing this, and available to do so, why were there so many projects?

I'm assuming you would disagree with the statement that they were not providing value for money, as the minister said. What was all this valuable work they were doing, if there were all these other groups that could do it? Was there a need for it?

[Melina Buckley]

Absolutely. I think the need for the program was very clear.

We already tried once in the 1990s without the Law Reform Commission, as I pointed out. There were the same kinds of concerns about value for money, and that the Department of Justice and the CBA could do it better than an independent agency that was off doing its own thing. That exercise was a flop. The Law Commission was reinstituted stronger than ever, with an even better framework. In its reincarnation, the Law Commission was incredibly skilled at establishing very effective consultation processes that we can all—the government and the CBA—learn from.

It really has done a fabulous job of engaging ordinary citizens in understanding the law better and in contributing to the way it's going in the future.

[Larry Bagnell, Liberal, Yukon, YT]

Mr. Norman, one of the ministers suggested, why would we need the Court Challenges Program when the government is never going to pass any laws that are unconstitutional? Of course, maybe this government wouldn't, but they have to deal with all the laws ever passed in Canadian history.

I ask you, is that true? Has the Constitution never been challenged? Is there no need for a Court Challenges Program, because the government always passes laws that are constitutional? Has the Constitution ever been challenged, and has the Court Challenges Program ever been involved in a challenge?

[Prof. Ken Norman]

Thank you for the question.

Constitutions are best understood as living trees. In my remarks, I cited the American constitution's Bill of Rights—200 years and growing. To my eye, there's no shortage of development at work in terms of litigation south of the border on the question of clarifying constitutional rights.

Constitutions have to reflect the societies that they're the foundation of. The courts are a vital player. I grant the point that absolutely the legislature is a vital player as well, but without the supremacy of the Constitution, the democratic project fails as a constitutional democratic project. This means that you absolutely have to have a supreme judiciary, as we do in this country, which in the end has the responsibility to say what this provision in the Constitution means at this time for this case.

For us, in terms of the history of the Court Challenges Program, to leave it only to those who have the means it takes to fight a case through to the Supreme Court of Canada, we're talking very large dollars. To leave access to the Supreme Court of Canada on constitutional questions as fundamental as official language minority and equality rights in this country to those who have the dollars to do so would be a shame, in my submission.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Norman.

Mr. Ménard.

[Réal Ménard, Bloc, Hochelaga, QC]

As you know, this is a fairly difficult and sad time for human rights because we're dealing with a quite heartless government that is not that concerned by these issues. It is a government that has resolutely chosen to sit on the right, and, like all right-wing governments, it does not believe in equal opportunity. That's the difference between the existence of a court challenges program and its non-existence. I'm saying that we won't yield. The minister can represent the Francophones in his riding all he wants, but he didn't want to answer my questions today. We're going to introduce motions.

You're familiar with the democratic adage that governments are sometimes blind but never deaf. We have to raise the volume. In all regions of Canada, I hope there's a caravan of personalities—I'm going to talk to my caucus about this—that travels through the Francophone communities to let them know how dangerous this government is for those who believe in equal opportunity for Francophones.

I never understood the Court Challenges Programs as such was a program that provided 100% funding for leave to go to court. That's obvious. You have contribution agreements and you receive $2.8 million a year. I read in your contribution agreements that you have to reserve $1.8 million for challenges; the rest is to cover expenses. You don't have a big budget; that's clear. The principle is this: what we accept because we're democrats is not challenges against laws; it's defining what laws are. The idea is to define the extent of a right. It isn't because a law was defined in a particular manner in 1996 that it won't be expanded and defined in another way in 2001, 2002 or 2003.

I'm not talking about section 15, but let's just take the idea of the entire issue of the manaagement of school boards, which we call school commissions in Quebec. How could anyone think that, without the Court Challenges Program, there would have been major advances like those we witnessed a few years ago. So point that out to this government, and I hope that the ministerial types switch to listening mode and that we have a minimum amount of awareness so that they can again realize that the vitality of our communities is at stake. I know we're not talking about their survival, but rather about the vitality of our communities.

Once again, there is a price to be paid by a right-wing government. When things go well, when we can afford to go to court, when we have no reversals of fortune in life, we don't need the government. When you're in the majority and you live in Alberta, Saskatchewan or Manitoba, when you're Anglo-Saxon and speak the language of the majority, you don't need the courts. The program isn't for that.

I apologize on behalf of the government for having one like that. May it please God and voters that, next time, this government is dispatched as it deserves. However, tell us how important for schools management the rights that you defend and the Court Challenges Program are.

[Prof. Ken Norman]

I'd be happy to do so, very briefly.

I think the school board issue is a wonderful example that those who have a fulsome view of bringing diverse groups to the table need to address. Where, if one's dealing with a recalcitrant anglophone community in Saskatchewan—where I come from, to take an example that won't offend others—where, if not in the courts, will the francophone official minority community in Gravelbourg, for example, have the capacity to move forward on what their children have a right to—a language of instruction that is their own?

We need the capacity to at least partially fund those parents and fund the groups who support those parents, to have their voices heard in court and have the court deal with a situation in which, as you know, sir, and as I'm sure the other honourable members do as well, you are facing governments that have absolutely a stone wall built. I'm talking here largely of municipal governments, but also provincial in these cases. This is not about dialogue. This is about “I'm sorry; go away.”

Without the courts—what? You go away.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Ménard.

Mr. Comartin.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Thank you, Mr. Chair.

Thank you all for coming.

The President of the Treasury Board has repeatedly stood in the House—as I recall, at least several times—and, Mr. Norman, in addition to the point about paying lawyers, has made the accusation, slandering those of us who are lawyers and don't belong to the Liberal Party, that this is a fund for Liberal lawyers to conduct these hearings under the court challenge.

Both Mr. Norman and Ms. Buckley, are you aware of any study that identifies the political affiliation of the lawyer who's taken on any of these cases?

[Prof. Ken Norman]

First, we don't fund lawyers; let's just put that on the table. We fund individual and group applicants. They retain lawyers. Those lawyers, as I have spoken to and as Ms. Buckley has spoken to, have a portion of their fee paid. It works like that. How is this funding done? It's done by a committee of experts who are themselves appointed by advisory panels to the program, at arm's length from the likes of me on the board of directors.

So it's a funding of individual applicants and group applicants on test cases of national importance that test questions of substantive equality on both the section 15 cases and the official language minority cases.

The vehicle for all of this, of course, is counsel, so the money ends up in lawyers' hands. But it's not funding lawyers, and the panels do not, when they make these decisions, always know who the lawyer is. They're funding applicant groups and applicant individuals.