Justice Committee on March 8th, 2016

[Colin Fraser, Liberal, West Nova, NS]

Thank you.

[Rachel Wernick]

My apologies; I didn't quite catch it the first time.

[Colin Fraser, Liberal, West Nova, NS]

With regard to the understanding of jurisdictional issues, it has been discussed that provincial and local issues perhaps could be challenged in an expanded court challenges program. Can you explain why those maybe weren't able to be brought forward under the previous court challenges program, and how a new program could look at incorporating more provincial and local elements into the program?

[Rachel Wernick]

As I said, of course this is work that would be developed in collaboration and consultation with our provincial-territorial colleagues and explored. I don't want to suggest that any decision has been made, but I think from the evaluations in the past and some of the analysis that came forward, quite a few of these types of test cases play out at the provincial level.

So there is a point of view that you could explore expanding it to capture more of the cases that fundamentally, like the language rights, still could be strengthening the charter over time, and the constitutional rights.

[The Chair, Liberal, Anthony Housefather]

Mr. Rankin.

[Murray Rankin, NDP, Victoria, BC]

Thank you, Ms. Wernick and your fellow panellists, for your excellent presentation. I want to start with a specific question and, time allowing, I have a couple of general ones.

The question deals with the linguistic rights program. My colleague François Choquette has a private member's bill seeking essential bilingualism among Supreme Court of Canada judges, not requiring a translation for those people. He's framing it as an equal access to justice issue. I notice in your presentation you talked about a case whereby the RCMP in New Brunswick was being challenged for the ability of citizens to communicate in the official language of their choice. Also by way of preamble, I notice Graham Fraser, our official languages commissioner, has criticized the government for failing to take steps to ensure that the superior court justices across the land are essentially bilingual, again as an equal access to justice question.

If legislation is not brought forward to address this in Parliament or in the provinces in question—I'm thinking of the Caron case in Alberta—then is this conceivably an issue that the court challenges program might address?

[Yvan Déry]

For the issue to be addressed by the language rights support program or the future court challenges program, it would have to be argued that the bilingualism of justices sitting on the Supreme Court bench is part of having access to your preferred judge on the Supreme Court as part of your charter rights. Currently, the Supreme Court has an obligation to be bilingual as an institution. Nowhere is it said that justices themselves have to be bilingual. A case could be tried or could be brought forward. The panel of experts on the language rights support program would have to decide whether it is a worthy case. The cause is certainly worthy, but legally is it sound? Michel Francoeur would probably have an opinion on that. If you can tie it to a charter right, to a language right, you can be funded by the program.

[Michel Francoeur]

I agree with Yvan. Indeed there are no constitutional provisions requiring that the justices of the Supreme Court of Canada be bilingual. That's the key criteria to get funds under the court challenges program and now the PADL since 2008.

[Murray Rankin, NDP, Victoria, BC]

All right. That goes to when you speak to the panel; that was one of my general questions. In a sense there's a built-in institutional bias, one could argue, whereby a government program is deciding whether to sue a government. In a sense you're trying to say, in the example of the Government of Canada, that services aren't available, based on some discrimination issue or language issue.

At a general level are you satisfied with the independence of the panel in that decision-making process? Are there steps that one should take to ensure that the panel is without that institutional bias?

[Rachel Wernick]

Obviously, the program was designed to have third party delivery, third party board and membership, and then on top of that an independent expert panel to review the application. Everything was put in place to provide that distance and impartiality. In modernizing the program we'll look at all aspects and whether that could be in force but there was no indication in the evaluations that there was a problem in impartiality.

[Murray Rankin, NDP, Victoria, BC]

That's what I wanted to find out, whether that was a criterion in the evaluation, and you've answered that. That's fine.

[Rachel Wernick]

We're always trying to do as well as we can.

[Murray Rankin, NDP, Victoria, BC]

I want to go to another general question. I don't know if there's a right answer to it but just in principle, we know how expensive litigation can be especially when you go all the way to the Supreme Court of Canada. Is it better in your judgment, over time, or perhaps through the evaluation you've answered this, to do a lot of little test cases or to do one gigantic, expensive test case? How do you do the balance given your limited budget in a given year?

[Rachel Wernick]

I don't think we decide that in the sense that it's a responsive program, and so it was responding to what applications came forward. But I'll let Erin speak to that.

[Erin Brady]

As I understand it—and my colleagues from Canadian Heritage can jump in on this as well—the corporation itself or the program itself set caps on how much funding it would give to a particular case at the various stages to which the case might move: at the trial level, at the appeals level, whether or not it was an intervention. I think there was also an overall cap on the amount of money that could be allocated to a particular case.

As I understand it, this was built in to the way the corporation itself designed the program. Some of those, I guess, might have been little cases in the sense that they might not have proceeded, for example, all the way to the Supreme Court, whereas others might have used more of the funding to proceed to higher levels of appeal.

[Rachel Wernick]

I think it's fair to say that the caps helped the program maximize the budget; you make sure you're saving some money for as many cases as possible.

For case development, the cap was $15,000; for case funding for litigation, the trial level was capped at $60,000 and the appeal level at $35,000, so you can see that there were caps put in place.

[The Chair, Liberal, Anthony Housefather]

Ms. Khalid.

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

With respect to the program being terminated in 2006, can you confirm for me whether it was because they found there was no use for this program anymore or because it had met its capacity?

[Rachel Wernick]

The termination was part of the expenditure review process. With all expenditure review processes there are trade-offs and decisions made about where cuts will be made.

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

What was the impact of the cancellation in 2006?

[Rachel Wernick]

The biggest impact, obviously, was that FCFA pursued the government on the grounds that the cancellation of the program was not respecting official language rights. There was an out-of-court settlement, and the PADL was created and continues.

That's the most immediate impact. We can't measure what cases didn't come forward because the program wasn't there, but fundamentally test cases weren't being funded anymore.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Test cases weren't being funded by the government, but there were test cases that continued to be....

I'm sorry. I didn't mean to interrupt.

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

I guess it would be safe to say, then, that there were cases that did not come forward that should have come forward, I assume, with respect to testing the charter rights.

[Michel Francoeur]

The only thing I wish to add with regard to language rights is that there was a period during which there was no court challenges program for language rights. It was between 2006, when the program was cancelled, and 2009, when the new program to assist with language rights came in,

the Language Rights Support Program.

That program came into force in 2009 and covered all the same constitutional provisions regarding language rights. There was thus a hiatus of three years for language rights during which no new cases could be funded, but in 2009 with the new program, new demands could be made on the same grounds.

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

While the program was still in effect, can you describe what kinds of organizations or individuals came to use the program?