Justice Committee on April 12th, 2016

[Geneviève Boudreau]

I just wanted to add that it's the same thing for the language rights program. As far as we know there's nothing like the language rights support program on the language side anywhere in the world that's funded by the government to litigate against the government.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Mr. Hussen.

[Ahmed Hussen, Liberal, York South—Weston, ON]

Yes, very quickly, Professor Bhabha.

Earlier you mentioned that access to justice requires an integrated approach involving activists, community members, and their professional allies, meaning lawyers.

I have two quick questions with respect to that. What do you see as being the federal government's role in that process? Also, with respect to access to justice, does legal aid have a role to play with regard to public interest litigation?

[Prof. Faisal Bhabha]

I argue in the paper, and I continue to believe, that you need a multi-faceted approach to access to justice, and legal aid is certainly part of that. Legal aid is a shrinking resource in this country. Ontario has probably the best legal aid in the country, and it's a system in which I've worked. It serves a very small segment of the population and it covers a very small area of legal services. I would suggest that legal aid, pro bono, and other access to justice initiatives are complements but they don't substitute or reproduce what a program like the court challenges program does. This links to your first question. I think the federal government can play a role in precisely this multi-faceted approach to access to justice that you've heard me say in connecting communities to their professional allies in order to give access to the courts.

A federal government that encourages and facilitates and provides the space for a community organization and engagement with the law is a federal government, I think, that is unique in the world and would be a model for delivering on the promises of liberal rights. We've seen in every western democracy that I'm familiar with a major gap between rights on paper and rights in the lived experiences of the population. This is something that our liberal democracies have failed to overcome, this major challenge of the apparent hypocrisy between the words of the law and the lived experiences.

I think the federal government can demonstrate that it wishes to overcome that gap by supporting the very communities that can empower themselves. It's not about handing money to lawyers to fight cases in court for or against government. I will point out that in my court challenges funded work, I was involved in an intervention in support of government legislation against a challenge from an organization that was seeking to do away with equality-positive legislation. The program both supports government efforts to litigate in favour of equality as well as to bring challenges to legislation.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

We're out of time here.

Do you on the Conservative side have any short questions that you wanted to ask, because we're only running one?

Mr. Cooper.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Yes. I have one question for clarification. It's directed to Mr. Foucher or Madame Boudreau.

The comment was made that the mandatory ADR process has not worked particularly well. Yet, during your presentation, Madame Boudreau, I thought I saw numbers. Perhaps you can clarify what they are because I didn't have an opportunity to write them down. They showed that of the ADR cases only a small number went to trial. If I'm accurate in what I thought I saw, actually the ADR process resulted in a settlement without the need to proceed to trial.

Could you perhaps clarify?

[Geneviève Boudreau]

Out of the completed files, whether successful or not, the number is 18. Instead of looking at it the way that only 10 out of the 18 went to trial, maybe look at it the other way. That is, out of the 18, only four were successful because only with four of those was there actually a partial or complete resolution of the problem. Ten went to trial, and then you have to assume that with the others the people just decided not to go to litigation because litigation is very time-consuming...energy, blah, blah, blah.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Well, isn't the purpose of ADR not to go to litigation?

[Geneviève Boudreau]

No, the purpose of ADR is to resolve the problem, and to clarify and advance the constitutional language rights. It's not for people to just give up.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

I'm certainly not suggesting that.

What is the purpose of ADR if it isn't to try to avoid going to trial in the first place? Why would you have an ADR process?

[Geneviève Boudreau]

The ADR process is not necessarily to avoid trial. I'll give you a concrete example. There's a group of parents whose school is next to a toxic dump, so the environmental situation for the kids is not safe. They want the toxic dump to be cleaned up or they want a new school. They go through ADR, and if it works, that means the dump is cleaned up or they get a new school so their kids don't have that toxic dump next to them. But if it doesn't work, and the parents decide they don't want to go to trial, they're stuck with that toxic dump. That's just an example.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Well, you've made a specific insinuation that certain—

[Geneviève Boudreau]

No, this is actually a case.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

No, I'm talking to you about the statistics that you put forward. You have insinuated that a certain number of people just gave up.

What is that based on? Do you have any evidence to demonstrate that, or is that just your best guess?

[Geneviève Boudreau]

Well, those are statistics. There are 18 cases that finished; 10 that went to trial; and four that were resolved. So why do you think that the five cases didn't go to trial? They didn't resolve the problem, so the problem is still there. I'm assuming they didn't want to go to trial.

[The Chair, Liberal, Anthony Housefather]

I appreciate that. I think the question is made. We can take whatever we want from the statistics, and we'll figure that out.

I just have one short mop-up question, if that's okay.

In regard to the confidentiality obligations under the program, there has been a lot of criticism related to the fact that since 2000, we have not seen all of the names, the amount of funding, and at least some cursory explanation of how they are being funded.

Is there a time limit for the confidentiality obligations? At some point under the language rights program, does the confidentiality obligation lift?

[Geneviève Boudreau]

No.

What I'd say is that in regard to the funding, the information is available through our annual report in the sense of how much was funded for litigation, the number of—

[The Chair, Liberal, Anthony Housefather]

But not the name of the person?

[Geneviève Boudreau]

No. We publish in our annual report the ones that we are able to publish, and I welcome you go to on our website and see that.

There has been talk about, if the program were to continue, the possibility of telling applicants that if they want funding from us, they need to let us publish. That was a proposed modification of the program.

[The Chair, Liberal, Anthony Housefather]

Thank you.

Thank you so much for an incredibly informative panel. We really appreciated your participation, and we'll look forward to receiving the report you made from 2007. Thank you very much everyone.

We will suspend now to get the other panel up to their chairs.

[The Chair, Liberal, Anthony Housefather]

I would ask my colleagues to please take their seats.

I am very pleased to welcome the witnesses appearing today.

We will hear from representatives of the federation representing francophone and Acadian communities outside Quebec.

We also have the umbrella group that represents the English-speaking communities of the province of Quebec.

It gives me great pleasure to welcome Sylvia Martin-Laforge, who is director general of the Quebec Community Groups Network. Welcome to our former colleague, Marlene Jennings, who is a former member of Parliament for Notre-Dame-de-Grâce—Lachine, who is also testifying on behalf of the QCGN.

I am also very pleased to welcome Sylviane Lanthier, president of the Fédération des communautés francophones et acadiennes du Canada, the FCFA, as well as Audrey LaBrie, its vice-president.

You have the floor, Ms. Jennings.

[Marlene Jennings, Quebec Community Groups Network]

Thank you very much.

Good morning, Mr. Housefather, Mr. Falk, Mr. Rankin, and members of the justice committee. Thank you for the opportunity to appear before you today to discuss the Government of Canada's intention to reinstate the court challenges program.

I am Marlene Jennings, as Mr. Housefather has stated. I'm here today representing the Quebec Community Groups Network and Canada's English linguistic minority communities, which we refer to collectively as the English-speaking community of Quebec. Joining me is QCGN's director general or executive director, Sylvia Martin-Laforge.

The Quebec Community Groups Network, or QCGN, is a not-for-profit representative organization that acts as a centre of evidence-based expertise and collective action on the strategic issues affecting our communities across Quebec. QCGN's 48 members are also not-for-profit community groups, most of whom provide direct services to members of our communities across Quebec. Some QCGN members work regionally, providing regionally based services. Others work across Quebec in specific sectors such as health and arts and culture.

English-speaking Quebec is Canada's largest official language minority community, with just over one million citizens in Quebec whose first official language spoken is English. We would like to acknowledge the leadership of the Fédération des communautés francophones et acadienne du Canada, FCFA, over the past decade. It did so first by fighting to ensure support was available to assist Canadians and protect and advance their linguistic rights through the language rights support program when the court challenges program was defunded in 2006 and, second, by recently creating the study committee earlier this year, of which I was a member, to make recommendations to FCFA and QCGN related to the Government of Canada's pledge to reinstate the court challenges program. The QCGN stands in lockstep with FCFA on this matter. We have passed a resolution supporting the study committee's recommendations, most of which Madam Lanthier and Madam LaBrie will outline when they make their presentation.

Courts play a central part in protecting and advancing linguistic rights, a process that invariably pits governments against Canada's official language minorities. In our democratic system, even governments that aspire to govern on behalf of all citizens invariably express the will of the majority. Human rights, of which linguistic rights are a subset, are by definition restrictive on government action, a set of boundaries that protects individuals and minorities from the detrimental effects of state power. John Adams' “tyranny of the majority” can be and has in the past been prevented to some extent within our democratic tradition by ensuring that individuals and minorities have substantive equal access to justice to protect and advance their rights.

But without initiatives like the court challenges program, the scale of justice is tipped in the government's favour, since the resources available to government—money, lawyers, time, and power—are on its side. Our community, that is, the English-speaking minority community of Quebec, has a long association with the court challenges program, which was key in upholding and advancing the language rights of English-speaking Quebeckers, particularly in the 1980s when we fought for freedom of expression in the Ford case and began a continuing journey to secure our minority language educational rights under section 23 of the charter.

I must say we are very pleased that Eric Maldoff, a leading Canadian jurist and tireless defender of our community's language rights, will be appearing before you on April 21 to provide you with examples from his experience, and to talk with you about the serious linguistic rights issues that now face our community in Quebec.

Our study committee made its recommendations based on two principles: independence and sustainability. Our committee understood that equality rights are of real importance to Canadian society, but our committee also believed that language rights are fundamentally different from equality rights, and that the two streams within the court challenges program, once reinstated, should be made independent of each other.

The study committee also believed that the new program should be independent of government. It should exist through an act of Parliament, to which it would be accountable, and it should be independently governed by a consortium of official language partners, including Canada's English and French linguistic minority communities, leading law schools, and expert language rights jurists. That independence should shelter the program somewhat from the whims of the government of the day. In any event, it is irrational to expect a government to have a governance role in a program that exists to support court actions against that very same government.

Sustainability is also a key, as is having sufficient resources at hand to meet the needs. In addition to the public investment that will be referred to by the FCFA, the new program must have the ability to raise funds from private sources. We should be thinking in terms of a foundation proclaimed by act of Parliament rather than a government program.

This was not part of my official statement, but given that there was a question posed to the previous panel, and a statement was made that the English language in Quebec is not in danger, that in fact it's just the English-speaking community's future that is in danger, I would like to take a moment to address that, because that is the position we hear all the time. The English language in Quebec is not in danger, only the communities are. In fact, the English language in Quebec is definitely in danger. An essential element of a minority language community continuing to thrive is that community's ability to work in one's language, to receive the full range of public and non-public services in one's official minority language.

Let's just give one example: to be able to work in one's language. The largest employer in Quebec is the provincial government, followed by municipal governments. One per cent of Quebec's provincial public service is made up of English-speaking Quebeckers, under the 2015-16 stats. We also know, under Census Canada, that English-speaking Quebeckers make up over 13% of Quebec's population. That means once we educate our children in English, they have nowhere to go, virtually, to work, so they leave. The use of English in the public space has been severely restricted under language laws in Quebec. When that theory of “the English language in Quebec is not in danger” is promoted and accepted, that puts the vitality and the future of our community in even more danger.

I wanted to underscore that, so that you do not walk away with the view that was expressed earlier by representatives of the language rights program, that English in Quebec is not in danger. It is in danger. The federal government has a responsibility and a role to play in ensuring that those dangers are minimized.

I give you one example.

The federal public service in Quebec, as well as companies and organizations that are federally regulated, are required to permit the use of English in the workspace. When I was a member of Parliament, I personally saw private members' bills that came forward to have Bill 101 applied to all federally regulated companies and associations. That would have eliminated any possibility for members of the English-language community to actually live and work in English.

I will end my remarks there. Thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you very much, Ms. Jennings.

We will now hear from the representatives of the Fédération des communautés francophones et acadiennes du Canada.

You have the floor, Ms. Lanthier.

[Sylviane Lanthier, President, Fédération des communautés francophones et acadienne du Canada]

Mr. Chair, members of the committee, thank you for inviting us to appear before you today.

My name is Sylviane Lanthier, president of the FCFA. With me today is our vice-president, Audrey LaBrie.

First of all, a few words about our organization and who we represent.

In 9 provinces and 3 territories, 2.6 million people have chosen to live in French. The vibrant and diverse francophone communities in every region of the country are the reason Canada can boast of genuine linguistic duality. The FCFA is the main voice of those communities and the people who belong to them, people who are determined to live their lives in French.

In recent decades, francophones in minority communities have had to turn to the courts several times to assert the language rights guaranteed to them under sections 16, 20 and 23 of the Canadian Charter of Rights and Freedoms. It was largely to support them that the Court Challenges Program, the CCP, was established in the 1980s. As you may know, the program had two components, one to protect language rights and the other to protect equality rights.

The CCP had a rather difficult history: its funding was eliminated in 1992, restored in 1993, only to be eliminated again in 2006. After the FCFA filed a petition for judicial review with the Federal Court, the government of the day created, in 2008, the language rights support program, commonly known as the LRSP. Simply put, our communities have not had access to the CCP for nearly 10 years to secure support for new language rights cases; we also cannot overlook the seven years during which the LRSP served this support role.

This is why, in the wake of the current government's commitment to reinstating the CCP, the FCFA board of directors decided last November to create an external committee to study the issue and to draft recommendations. For us, it was not simply a matter of choosing between two programs. For the first time in nearly a decade, we have an opportunity to thoroughly examine how support is provided to Canadians wishing to assert their language rights.

The committee was made up of outside parties familiar with both programs, although they were not directly associated with any ongoing cases or issues. It also included representatives of the Quebec Community Groups Network, to ensure that its work and recommendations would reflect a shared perspective of official language minority communities in Canada. Finally, Michel Bastarache, former Supreme Court justice, provided support to the committee. Both the CCP and the LRSP were notified of the creation of this committee.

The committee's mandate was to answer the following question: what would be the best way to uphold and promote the language rights of Canadians? The final report was submitted in February to the FCFA board, which broadly adopted the committee's recommendations. You have before you the resolution to that effect.

Without going into detail, I would like to highlight a few of the principles adopted by the committee and endorsed by the FCFA.

First, the sustainability and independence of the program are important. As I said earlier, the funding of the CCP was eliminated twice, and after the last time, nearly three years went by before Canadians wishing to assert their language rights could once again receive support.

That is why the creation of the enhanced program we are recommending should be based on federal legislation and therefore have a legal foundation. That is also why the government should support the enhanced program with a substantial initial endowment fund that would enable it to operate independently thereafter.

The second principle is that this enhanced program should be specifically devoted to language rights. Let me be very clear: the FCFA recognizes the importance of equality rights and fully supports the idea of a program dedicated to defending those rights. To put it simply, since the legal foundation of language rights differs from that of equality rights, we think two separate programs should be created.

Third, this enhanced program should be expanded to allow for redress under such legislation as the Official Languages Act or any other federal statute pertaining to language rights. Currently, the LRSP allows for recourse only pursuant to constitutional language rights.

Finally, given the significant growth in demand for the defence of language rights since the LRSP was established, the government's initial endowment fund should represent a significant increase in funding.

The FCFA is aware that the federal government announced in the March 22 budget that it would reinvest in the Court Challenges Program. We appreciate the government's gesture of support but maintain that the resolution we put before you today—which is the result of serious and extensive study—best reflects the needs and aspirations of official language minority communities.

Before, closing I would like to speak for a moment about Bill C-203, which was introduced by MP François Choquette. This bill would amend the Supreme Court Act by making the ability to understand both official languages without the assistance of an interpreter an essential requirement for appointment to the highest court of the land.

As you surely know, Bill C-203 is the successor to two bills tabled in the last Parliament by Yvon Godin, the former member for Acadie-Bathurst. This has been a topic of discussion for nearly 10 years. At issue is essentially the right of members of the public to be heard and understood in the official language of their choice before the highest court of the land.

Thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Let us turn now to questions, starting with the Conservative Party member.

You have the floor, Mr. Falk.