Evidence of meeting #6 for Justice and Human Rights in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was quebec.
A recording is available from Parliament.
Conservative
Rob Nicholson Conservative Niagara Falls, ON
Those of us who practise law would know this. There would be no incentive then for anyone to accept any decision at a lower level. They might as well appeal because they know they're going to be funded.
Analyst and Professor, Language Rights Support Program (LRSP)
It depends on who the appellant is.
Many times, it's the government, because the government gets slammed by the trial judge and decides to appeal. Now the other party, the minority language organization or individual, will come to us and say that the government is appealing and can they have some help.
Conservative
Rob Nicholson Conservative Niagara Falls, ON
Fair enough.
You indicated as well, Madame Boudreau, that you have had an increase in the number of applications, and depending upon the funding, how many that you can....
Are there some applications that just don't cut it in your view? It's not just a question of having enough funding for them, aren't there some that you say, look this doesn't meet our qualifications and you have to give them that information?
Director, Language Rights Support Program (LRSP)
That's totally correct.
Most of the funding that we refuse is because they do not meet the criteria. The first few years that we were open, all the ones that we refused were because they did not meet the criteria. It's only in the last three years that we've not only refused the ones that do not meet the criteria, but also the ones that do meet the criteria, because of lack of funding.
Analyst and Professor, Language Rights Support Program (LRSP)
Can I add something on that because I'm the one putting the recommendation to the committee?
Not meeting the criteria is usually two things.
First of all, it's not a constitutional right. And I would tag onto my colleague's comment that a renewed program should be enlarged to at least cover the federal Official Languages Act. A lot of them are based on that, and it is very clear in our contribution agreement and in the out-of-court settlement that we are not allowed to fund cases based only on language legislation. That's one. The second one is that it's not a test case.
Conservative
Rob Nicholson Conservative Niagara Falls, ON
That's fair enough. The diagram on the board that shows the increase of applications and the gap between that is not necessarily a question of funding. It's also a question of people not meeting the criteria.
If I have time, I have maybe one request to Professor Bhabha.
I think you were at Harvard University recently, and you were talking to them about accessibility and the Canadian justice system. I don't know if you had any speaking notes or if you had prepared anything, but if you did, I wouldn't mind, and I'm sure the other members wouldn't mind, getting a copy of that if you get the opportunity.
Associate Professor, Osgoode Hall Law School, York University, As an Individual
I haven't spoken at Harvard in a number of years.
I'm not sure which talk you're referring to, but I have—
Conservative
Rob Nicholson Conservative Niagara Falls, ON
It was accessibility to the court system. My understanding was that you were there talking about accessibility in the Canadian judicial system.
Associate Professor, Osgoode Hall Law School, York University, As an Individual
I published an article in 2007 in which I discuss the court challenges program as a case study in access to justice. If you're looking for something in writing from me, I'd be happy to share it with the committee after I leave today.
Conservative
Liberal
Colin Fraser Liberal West Nova, NS
Thank you, Mr. Chair.
I would like to thank all the witnesses for their presentations and their time today.
I am from Nova Scotia and I know that language rights for francophones in the province are a challenging issue. Ms. Boudreau spoke about the Acadians in New Brunswick, but there are also Acadians in Nova Scotia.
Ms. Boudreau, my question is for you.
Do various groups across the country, such as anglophones in Quebec and Acadians in Nova Scotia, face different challenges as regards language rights?
Director, Language Rights Support Program (LRSP)
Absolutely.
I am an Acadian. I was born in New Brunswick and lived in Nova Scotia for five years. I have even lived in Alberta, British Columbia, and Manitoba. Now I live in Ontario. I have myself experienced the differences between the communities. Not only are there differences between francophones outside Quebec, but there are also differences between anglophones in Quebec and francophones outside Quebec, as you stated.
I was not very familiar with the experience of anglophones in Quebec before I started working for the LRSP. In the last six years, by meeting and consulting them, I have learned about the challenges they face. Let me give you an example of the different challenges that francophones face.
In Ontario, there is the French Languages Services Act, which is well implemented by the government. In New Brunswick, there are constitutional language rights that do not exist in other provinces. We can compare these two provinces with British Columbia and Alberta, where the francophone minority is smaller. The legislation is not as strong there and the government does not have the same will to implement laws in order to enable the communities to live in French.
In other words, there are many differences between the English-speaking provinces. That is why initiatives conducted in cooperation with partners are so important. They know their own experiences, and the initiatives we undertake for them reflect their needs.
The experience of anglophones in Quebec is completely different. The English language is not threatened there. The challenges are different but the community itself is threatened because anglophones are leaving Quebec. The approach is entirely different, and as a result, the assistance provided by the LRSP is very different. The francophones and anglophones take completely different approaches in asserting their constitutional language rights.
To answer your question, I would say that the challenges do indeed differ across the country.
Liberal
Colin Fraser Liberal West Nova, NS
Thank you.
My second question is for all the witnesses.
Did the former Court Challenges Program appropriately address the different challenges across the country? Did it allow some flexibility as to the different needs in any given province or region?
Assistant Vice-President, Equity, Diversity and Human Rights, Laurentian University, As an Individual
I would say so. As Ms. Boudreau just stated, the program and the communities that made the decisions were well versed in the challenges relating to language rights and equality.
Liberal
Colin Fraser Liberal West Nova, NS
I believe my colleague, Mr. Hussen, would like to ask a question.
Liberal
Ahmed Hussen Liberal York South—Weston, ON
On the language rights program, can you provide some examples of funded cases that have led to further constitutional clarity?
Director, Language Rights Support Program (LRSP)
Yes. I should have brought my list. I have to be careful of the cases I name because the way we work at the Language Rights Support Program is that if an application comes to us, it's confidential, so who made the application and the fact that they made application is confidential. If they are approved for funding, then at that point we ask them to fill out a form. The form is a bit complex but it basically asks them what information can we provide to the public. Unless they give us a yes, a tick, and they sign that form telling us exactly what information we can provide, whether it's their name, the type of funding they get, the subject of the case, the details of the case.... It's a detailed form. And it asks at what point can we provide the information. Can we provide it now, or when it's all over?
I will provide a couple of cases. Recently there was a Supreme Court of Canada case called l’école Rose-des-vents. That's in education. Maybe after I've listed two or three cases Professor Foucher will want to add some comments and maybe some details about the case. Another case was about the Senate reform. That went to the Supreme Court of Canada. There we funded the FCFA.
We are also funding some school boards across Canada, without going into details, regarding educational rights. We also fund groups of parents who are concerned about the education of their children. We're also funding some cases on section 20 of the charter, which has to do with communication in services from the federal government.
Did you want to add anything?
Analyst and Professor, Language Rights Support Program (LRSP)
I would just say that the cases mentioned did indeed clarify the law, which is the main purpose of the program.
Director, Language Rights Support Program (LRSP)
I can say that there are about 20 to 30 cases that have finished since we've started. They went to different levels of court, but a lot of the cases that we do fund end up in the Supreme Court of Canada.
NDP
Murray Rankin NDP Victoria, BC
Thank you, all, for really helpful presentations.
I'd like to start, please, with Professor Bhabha. I invite you to elaborate on those two excellent recommendations that you gave our committee.
If I could summarize, it seems the first was that you were concerned about the program, the CCP, being applied merely to federal jurisdiction. I think, for example, human rights tribunals in a particular jurisdiction in the era of the Internet quickly become known everywhere in the country and so one would expect that would prompt your recommendation. On the other hand, there's the raw federal-provincial politics that might explain why the federal government funding challenges of a particular province's laws may not be terribly attractive. I'd like you to elaborate on that.
The second observation was the limitation to section 15. I thought there you were absolutely right on the mark. I can think of so many cases where you start with section 15 because you have to, but then section 7 is what wins the day. That was the case in Carter, the physician-assisted dying case, where they abandoned the section 15 argument and went with section 7, as you know. Or there's the Gosselin case on homelessness, a critical issue in my community and elsewhere in Canada. It will be 7; it will be 15. It will be both. Maybe the court challenges program could get involved, but if it isn't framed under section 15 it can't get any funding.
I'd invite you, please, to elaborate on those two points, if you would.
Associate Professor, Osgoode Hall Law School, York University, As an Individual
Thank you, and thanks for what sounds like your supportive comments on those recommendations.
I understand from a political standpoint the reason for separating the jurisdictions, but I think if you take a purposive approach to the mandate of the program it simply doesn't make sense. Look at the charter as a piece of neither federal nor provincial legislation, but rather as a constitutional instrument that sits above all of the other laws in the country, whether they're passed by federal, provincial, or municipal law-making bodies. From the perspective of the people who are experiencing the law, it makes no difference where the jurisdiction to make that law or to change that law resides.
If the concern of the program is to promote the development of equality law generally, and to empower the communities that are experiencing vulnerability or inequality, then that jurisdictional distinction makes no sense. It seems, for reasons that I mentioned, that when you look at the areas of law that fall under provincial jurisdiction it makes even less sense to separate that out because the areas in which historically disadvantaged groups in Canadian society are most adversely affected is in those areas that fall under provincial legislation.
I would urge members of this committee, and the government in particular, to sidestep the political issue and focus on the purpose. If you're going to bring the program back, give it the teeth it deserves, and make it into something that will be a real instrument for a quality change in the country. It will be something that we can be proud of as a nation if that is indeed something the government wishes to stand behind.
I think you've made my point. Carter is the case that comes to mind most immediately. I attended the annual constitutional cases conference at Osgoode Hall Law School just last Friday, which is a premier event for scholars and practitioners to analyze the year's developments. Again this year, as we've heard over the last several years, section 7 is in a way becoming the new section 15. There are those who say that this is a horrible thing, and there are those who say that this is simply a reality.
