Justice Committee on March 8th, 2016

[The Chair, Liberal, Anthony Housefather]

Good morning, ladies and gentlemen.

Welcome to our meeting.

I wanted to thank our witnesses today from Canadian Heritage and Justice for coming to present to us on the court challenges program. I believe today there is going to be one panel, so the two departments are presenting together, and then we'll have a couple of rounds of questions.

Joining us today from Canadian Heritage are Rachel Wernick, who is the assistant deputy minister, strategic policy, planning and corporate affairs; Yvan Déry, who is the senior director, policy and research for the official languages branch of Canadian Heritage; and Liane Venasse, senior policy and research analyst.

From the Department of Justice, we have Michel Francoeur, who is the director and general counsel, official languages directorate; and Erin Brady, who is the general counsel of human rights law section.

I really appreciate your taking the time to come to address the committee. I know members of all parties are very happy to hear from you. I'd like to turn it over to you to make your presentations.

[Rachel Wernick, Assistant Deputy Minister, Strategic Policy, Planning and Corporate Affairs, Department of Canadian Heritage]

Thank you, and good morning.

I will take you through a short overview presentation just to get the basic information in front of you. And then, of course, we're at your disposal to answer questions following that.

I will take you through a historical overview of the Court Challenges Program.

The program was created in 1978 to fund court cases seeking to clarify constitutional linguistic rights. It was expanded in 1982 to include linguistic rights guaranteed under the charter. It was expanded again in 1985 to cover federal law, policies and practices based on equality rights under the charter. It was eliminated in 1992, then reinstated in 1994 with the same mandate. It was eliminated again in 2006.

The objective of the program is to achieve a better understanding, respect for, and enjoyment of human rights through the clarification of the following constitutional rights and freedoms.

There are official language rights as guaranteed by the interpretation or application of section 93 or 133 of the Constitution Act of 1867, or as guaranteed in section 23 of the Manitoba Act of 1870, sections 16 to 23 of the Constitution Act of 1982, or parallel constitutional provisions, or the clarification of the linguistic aspect of freedom of expression in section 2 of the Canadian Charter of Rights and Freedoms when invoked in an official language minority case.

With respect to equality rights, it's the equality rights guaranteed in sections 15 and 28 of the Canadian charter, including clarification of section 2 or 27 when invoked in support of arguments based on section 15.

That's a lot of different sections, but we can go into detail in them later if you're interested in exploring that.

The court challenges program was managed by a third party, a not-for-profit corporation called the Court Challenges Program of Canada made up of 17 volunteer board members. The membership was equal across equality and language rights organizations. Funding decisions were made by a language rights panel and an equality rights panel. Each was composed of individuals with experience and knowledge in their respective issues. It funded three areas: test case work including case development, litigation, and negotiation; impact study; and program promotion and access. Members of disadvantaged or official language minority groups or non-profit organizations representing such groups were eligible for funding. It had an annual budget of $2.85 million.

Looking at some of the key facts about the program between 1994 and 2006, the program received an annual average of 112 applications relating to equality rights and 32 applications relating to language rights. The equality rights panel approved 62.5% of these applications, and the language rights panel approved 75.7%. Unsuccessful applications were off-course because they did not meet the key eligibility requirements.

In terms of these test cases, we can provide some stats. Under the equality rights 15.3% were aboriginal; 13.6% related to colour, race, ethnicity, or nationality; 9.2% related to disability; and 8.4% related to gender equality. For the linguistics rights program a large percentage related to education rights and official language of choice. In terms of distribution, 53% of the applicants were groups and 47% were individuals.

I think that it is fair to say that the results of the cases funded through the program enhanced understanding of the constitutional and charter rights of Canadians and informed the legislative and social policy initiatives of the government while it was running. Over the years, CCP provided funding for cases related to important areas including age, race, disability, family status, poverty, religion, and sexual orientation.

Some of the important rulings by the Supreme Court of Canada on cases that received funding from this program addressed the following areas: access to social and economic benefits for disadvantaged groups, including aboriginal people, women, and persons with disabilities; accessibility of public transportation for persons with disabilities; voting rights for prisoners; preventing deportation to torture; access to education in minority official languages; and the right to communications and services in the official language of your choice from the RCMP in New Brunswick.

At the time of its elimination, the government did commit to honour previously approved cases up to the final stage of appeal. There are still 28 equality and language rights cases remaining, and currently $1.4 million annually is being allocated by PCH to manage these cases.

After 2006, following an out-of-court settlement between the Government of Canada and the Fédération des communautés francophones et acadienne du Canada, the language rights support program was established in 2009. Fundamentally it resurrected the same linguistic rights areas as the CCP and funded a similar stream of activities. It's administered by the University of Ottawa and, once again, the decisions on accepting the test cases are made by an expert panel. It has a budget of $1.5 million annually, again reallocated by the PCH, the heritage budget, and the current contribution agreement expires March 31, 2017.

That was just a high-level overview of the program to get us started.

I welcome your questions.

[The Chair, Liberal, Anthony Housefather]

Thank you very much for your presentation. It was very informative.

We will now start the first round of questions with Mr. Nicholson, representing the Conservative Party.

[Rob Nicholson, Conservative, Niagara Falls, ON]

I remember very clearly the rationale that went into this program. I was a member of this committee around 1985 when the charter kicked in, and we had to have a look at and review all parts of Canadian legislation that were completely or partially out of touch with what the charter was saying and what the charter required.

Many of the laws that we had a look at hadn't been touched since about 1892 when they were compiling the Criminal Code, and, indeed, some of the ones from 1892 had been taken from 60 or 70 years previously, from the early 1800s. There was a very important need to make sure that we were up to date.

The job wasn't left just to this committee and/or the government to update our laws. A good case was made to have a number of these laws and these cases brought before the court and, indeed, the court challenges program, but it was believed that, after approximately 20 years of funding these and the challenges, Canada's laws were up to date. It's not that some of these issues don't continue to exist—of course they do, and of course they are a concern—but we have a judicial system in this country that gives lawyers the opportunity to challenge any laws or regulations that they find either discriminatory or not inclusive, and so that was the decision at the time.

I'm sure you track these things. I'm sure there continue to be challenges, perhaps less so than there were in the past, and as I say, there has to have been a decline since the 1980s in terms of the unacceptability or non-compliance of federal legislation.

Aren't there still quite a few challenges to different regulations and laws in this country that are conducted by the lawyers who represent these individuals? I know for sure that many of those non-profit groups continue to take on the Canadian government and use their own resources as opposed to taxpayers' resources. Is that a fair comment?

[Rachel Wernick]

I think there are two parts to that answer. We are going to have a bit of this today.

I'll let Yvan tell you about where we are, how in recent years the PADL, the language-based program, continues to support cases. Then we can speak a bit, from Justice, about how there continue to be potential cases.

There was an independent evaluation of the program in 2003, which concluded that the program was addressing a need and that it had been successful in supporting important court cases that had had a direct impact on....

The other issue I would point to is the access to the justice system. The biggest barrier, bar none, is financial. There was a demonstrated need to provide some financial support in order to bring these test cases forward.

I'll let Yvan speak a little bit about the PADL.

[Yvan Déry, Senior Director, Policy and Research, Official Languages Branch, Department of Canadian Heritage]

Good morning.

Since 2009, after the abolition of the court challenges program and the creation of the language rights support program in 2009, we have had 125 requests for litigation support, and 85 of them were accepted. That speaks to the continued need, on the side of language rights anyway, for such a program. We had an evaluation of the language rights support program in 2014 that basically confirmed that need.

The challenges for complainants are high. The cost of litigation has exploded. The type of support these kinds of programs can provide is more than symbolic. It gets you past a certain threshold to have a good case and present it to the courts. We continue to think that there is a need for such a program.

By and large, over the last 30 years we've had one big decision by the Supreme Court a year, 30 decisions, on language rights issues. If we look at the cases that are in front of the courts today, we still have important parts of section 23 on education, for example, that need to be clarified.

I don't know what the trends were on the equality cases after the abolition of the court challenges program, but maybe Justice could speak to that.

[Rob Nicholson, Conservative, Niagara Falls, ON]

That would be something separate and apart. I believe the funding is going until 2017. It's already continuing, and it's on, which is something separate and apart now from the old court challenges program. This was a spinoff from the court challenges program, and it is going to continue, quite apart from this discussion.

If you have comments with respect to some of the other issues, I would be glad to hear those.

[Michel Francoeur, Director and General Counsel, Official Languages Directorate, Public Law and Legislative Services Sector, Department of Justice]

Your question is about whether there are still cases regarding language rights.

[Yvan Déry]

Equality rights.

[Michel Francoeur]

For equality rights, I would ask my colleague Erin Brady to talk.

[Erin Brady, General Counsel, Human Rights Law Section, Public Law and Legislative Services Sector, Department of Justice]

Certainly, there are still equality rights cases in the courts facing the federal government, as well as, of course, provincial and territorial governments. I would say that over the last number of years there has been a major decision before the Supreme Court every couple of years.

There was one just this past year in the aboriginal context. It is called the Taypotat decision. The one before that was in 2013, and it involved an issue in Quebec of matrimonial property division as well as support with respect to de facto spouses.

While we certainly have over 30 years of jurisprudence now built up with respect to equality rights, we continue to see cases coming forward against all levels of government. Certainly, we see the Supreme Court itself continuing to fine-tune its approaches to interpreting these rights.

On the horizon, we envision other issues that are going to come up, as well, that will be challenged. This also goes to a basic principle that the courts apply when interpreting the Constitution, which certainly applies to equality rights as well as official language rights. It is the idea that the Constitution is a living tree. It is meant to be interpreted progressively over time so that it can stay in step with changes in social conditions and continue to adapt to modern realities. That goes to the idea of need over time, as well.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

We are over time, so we are going to go to Mr. McKinnon.

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

First of all, thank you for your presentation.

I take Mr. Nicholson's point about this being fairly well-tilled ground; however, it still seems to be quite fertile. It's one thing to have rights expressed as high-flown words on paper; it's another to have them tested and to make them real. For people who have limited financial means, this is, of course, a great program to do that.

I am interested, in particular, in extending the program beyond language and equality rights. Do you have any recommendations on particular areas to extend the coverage of the program into, whether the charter in broad or particular sections of the charter?

[Rachel Wernick]

We are leading work right now for our minister and the Minister of Justice to modernize the court challenges program. That commitment was in both mandate letters. Of course we're starting that work by launching a fairly extensive consultation with experts and organizations and Canadians.

It's fair to say that as part of the development of proposed options for a modernized program, we will explore, in the spirit of evolving with the times, whether the scope of the program should be expanded. There are two areas that often come back from expert views on where it potentially could grow. This would be looking at some of the fundamental freedoms—freedom of association, freedom of religion, and religious expression, which is an area of evolving context—and applying to provincial and territorial cases, which is the case with language but not with equality.

I'm just telling you what we're exploring. I think it's really important to say that this is in the development phase, but we do good policy work. We look at all of the options and test the viability and strength of the evidence base to go there, and we consult. That work is under way already.

[The Chair, Liberal, Anthony Housefather]

Mr. Fraser.

[Colin Fraser, Liberal, West Nova, NS]

This touches on what Mr. Nicholson mentioned with regard to the building of jurisprudence. I think he mentioned that similar thoughts were expressed in 1992, when the court challenges program was cancelled for the first time, basically saying that one of the reasons was that there was no longer a purpose, since it had supported the establishment of a solid body of case law pertaining to charter rights.

I wonder if you can comment on the amount of jurisprudence that came forward between 1994, when the program was restored, and 2006, when it was cancelled again, in relation to equality rights and language rights.

[Rachel Wernick]

If I understand the question correctly, it's a similar question to how many cases were brought forward while it was existing.

[Colin Fraser, Liberal, West Nova, NS]

Yes.

[Rachel Wernick]

Yvan, perhaps you could repeat your answer on that.

[Yvan Déry]

The 85 cases funded since 2009 were on the language side only.

In your deck, I think you have the data on the number of cases funded through the court challenges program since [Inaudible--Editor].

[Rachel Wernick]

On slide 6 we referred to the backward-looking statistics in terms of cases that were funded. It was 112.

[The Chair, Liberal, Anthony Housefather]

Ms. Wernick, I'm sorry to intervene, but I think Mr. Fraser was trying to make the point that in 1994 there was a similar claim that the program might not be necessary anymore because jurisprudence was settled. As such, he's asking how many cases were funded in the period between 1994 and the cancellation of the program in 2006.

[Rachel Wernick]

Between 1994 and 2006?

[Colin Fraser, Liberal, West Nova, NS]

Yes. That was my question.

[Rachel Wernick]

There were 112 applications funded for equality rights and 32 related to language rights.