Justice Committee on March 8th, 2016

[Murray Rankin, NDP, Victoria, BC]

I'd just like to pursue the Caron and Alberta case a little as another example of the linguistic rights issue that I talked about before.

As I understand it, in November the Supreme Court ruled that Alberta is not required to legislate in both languages, which has an impact according to the languages commissioner on the legislation, including administration of justice in that province, appointments to the bench, access in one's language of choice in a province like Alberta.

Is that something that the CCP could take on? Is that the kind of case that could be funded conceivably?

[Yvan Déry]

It is one that has been funded, and it is a settled case.

For the program to be involved in a way, one would have to find a new angle to bring to the courts. It would have to be decided that yes, it falls within the constitutional rights that have not yet been clarified. Caron was a very interesting case for clarification of constitutional rights. So far it has been tested.

[Murray Rankin, NDP, Victoria, BC]

Right, but could it be tested in another province, for example? Does your criteria suggest that, well, we've had this issue resolved—frankly not the way one would have hoped, let's say—in a particular province, so let's go and try it in British Columbia, for example? Is that how you proceed, or is the precedential value such that you would say the benefit-risk equation doesn't work?

[Yvan Déry]

I know that Michel is eager to respond to that.

In fact, that Caron case was applicable to Saskatchewan, Alberta, and the Northwest Territories, and in fact, to parts of Manitoba and even parts of other provinces that were at one time part of the Northwest Territories, which never included British Columbia. Basically, the decision has been set for all this land mass that used to be part of the Northwest Territories—

[Murray Rankin, NDP, Victoria, BC]

But it has no precedential value for British Columbia in that example.

Alright, it's been resolved.

I know that every case is different. I know that the legislation at issue is different, but could you say, “Well, hold on, there's not much sense in proceeding with that example in another province. We're going to put our eggs in a different basket”?

My question is about how you prioritize your cases and make decisions.

[Yvan Déry]

We do not prioritize those cases. It's done independently by a panel of experts. If you want to, you're welcome to invite the language rights support program's administration to answer those questions more directly.

The idea is that we have a panel of experts who will decide the worth of the case. In the theoretical case of B.C., for example, one would have to look at the material that people have found upon which they want to base their case in order to decide whether it has a chance of success, look at other cases that have been submitted that year, and decide which ones are the most interesting.

[Murray Rankin, NDP, Victoria, BC]

Tell us a bit more about the nature of the panel and its decision-making process. Does it make a recommendation to the government as to the expenditure of funds? How does it actually work?

[Yvan Déry]

In the case of the language rights support program—and there are differences between the way the CCP was run and the way the language rights support program is run—the panel is composed of four lawyers who have experience and knowledge of language rights issues, one expert in ADR, or alternative dispute resolution, who is also normally someone with a legal background, and four representatives of minority communities.

The program was established, as you know, from an out-of-court settlement with the Fédération des communautés francophones et acadienne du Canada, so the angle of option language minority rights is pretty strong in the program, but it covers all kinds of language rights.

That panel is sovereign, in a way, in the decisions that they make on cases. The program staff and analysts will bring a case forward and write a précis. Then the experts will sit and look at all of that, look at the budget they have available, and decide which cases they will support.

The language rights support program produces an annual report that describes most of the cases that have been supported. Should a litigant decide that he or she doesn't want the fact that he or she is supported by the program to be known, there is a confidentiality clause. We don't even know, if they don't want us to know, which case they support. The litigant has the right to be discreet, in a way.

It's run totally independently. We have the reports. Most of the information that we shared with you today is drawn up from the old reports of the CCP or the reports that have been made available to us by the language rights support program, but it is independently run.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Basically, we've gone through two rounds of questioning. We don't really have rules related to any further questioning. I'd like to ask each of the different groups if they have further questions or if they'd like to wrap the meeting up.

Are you all good? Are the Liberals good? Is the NDP good?

[Colin Fraser, Liberal, West Nova, NS]

Mr. Chair, may I just ask one question?

[The Chair, Liberal, Anthony Housefather]

Sure. One final question from Mr. Fraser.

[Colin Fraser, Liberal, West Nova, NS]

Page 6 of the deck that was circulated indicates in point 2 that most unsuccessful applications did not meet the eligibility requirements.

I'm just curious about “most unsuccessful”. Which ones that meet the requirements wouldn't have been successful, and why?

[Rachel Wernick]

The eligibility requirements are linked to federal policy, the criteria for the test case, not duplicating a former...those were the primary reasons funding applications weren't successful.

I would imagine that a very small number would have been unsuccessful because they were incomplete or didn't provide enough information. They weren't eligible applicants.

[Yvan Déry]

In the case of the language rights support program, the applications that were not funded might very well have been so because the panel chose the best cases that they had in front of them, and some cases had to be left out because of the lack of financial resources.

[Colin Fraser, Liberal, West Nova, NS]

So they do examine the merits, then?

[Yvan Déry]

They do. If they are receivable, if they address a right that is covered by the program, they are examined, and the best ones are chosen.

[The Chair, Liberal, Anthony Housefather]

I would like to thank all the witnesses who appeared before us today. You were very good witnesses and I greatly appreciate your contribution to the committee's work.

As we assess the court challenges program, I'm sure we'll becoming back with our recommendations, potentially including how contributions work and what's eligible. We appreciate your attention to our recommendations when we come up with them.

Have a great day, and thank you very much.

[Rachel Wernick]

Thank you.

[The Chair, Liberal, Anthony Housefather]

So for members of the committee, we're reassembling on Thursday morning at 8:45. We'll be talking about the supplementary estimates (C) with members of the department, and then the subcommittee will be meeting with respect to witnesses and court challenges after that.

The meeting is adjourned.