Justice Committee on April 12th, 2016

[The Chair, Liberal, Anthony Housefather]

Good morning, everyone, and welcome to this meeting of the Standing Committee on Justice and Human Rights.

My name is Anthony Housefather and I am the member for Mount Royal. I am also the chair of this committee. We are very pleased to welcome the witnesses to this first half of our meeting today.

We are joined today, from the Language Rights Support Program, by Monsieur Pierre Foucher, who is the analyst and professor; and Madame Geneviève Boudreau, who is the director. As individuals, we have Professor Noël Badiou, who is the assistant vice-president of equity, diversity and human rights at Laurentian University; and Faisal Bhabha who is an associate professor at Osgoode Hall Law School, and I know taught at least one member of this panel. I'm very pleased to welcome all of you here today.

Normally we would go first to the Language Rights Support Program. Do you need more time, Madame Boudreau?

[Geneviève Boudreau, Director, Language Rights Support Program (LRSP)]

No, I'm good, unless you don't want me to be first.

[The Chair, Liberal, Anthony Housefather]

No, that's fine.

You have the floor, Ms. Boudreau.

[Geneviève Boudreau]

Thank you, Mr. Chair.

I am pleased to speak to you this morning about the language rights support program, the LRSP.

As you know, the LRSP is the result of an out-of-court settlement after the abolition of the Programme de contestation judiciaire. The contribution agreement under which the LRSP functions is really based on the framework that was in the out-of-court settlement, with many more details. The contribution agreement is between Canadian Heritage and the University of Ottawa, and the funding is $1.5 million a year. The mandate of the LRSP is the clarification and the advancement of constitutional language rights.

The role of the University of Ottawa, as the managing institution, is basically to offer the LRSP human resources services, its financial department, and its IT department. It has a department of procurement and management of risk, and crisis management as well.

The expert panel of the LRSP, on the other hand, is appointed by the Minister of Canadian Heritage. The appointment is made from a list provided by the Fédération des communautés francophones et acadienne du Canada and from Quebec Community Groups Network, and other organizations across Canada. This appointment is nine members across Canada. Five of them are lawyers, and one of them is an expert in alternative dispute resolution, as well as four members from communities who are recognized within their communities; that's why they were on the list from the FCFA and QCGN in the first place.

The expert panel role, compared to that of the University of Ottawa, is all to do with funding. It makes the final decision on who gets funding and who applies to the program. Its role is very important as it's completely independent from the University of Ottawa, as well as from the government. It's impartial and independent. In all the six years that I have worked there, it has deliberated in all impartiality.

The component of information et promotion of the LRSP has evolved over the last six years. At the beginning, for the first couple of years, we did a lot of presentations across Canada. Even now, today, we make presentations during conferences, the AGM of our organization, etc. At the beginning we did a lot of consultations. We went around Canada, to all the regions, and we consulted with the organizations that worked with the francophone community or the anglophone community in Quebec. We analyzed their needs, not only to do with what information they needed for constitutional language rights but where they wanted to go towards advancing constitutional language rights.

As we progressed, the information and promotion component evolved. Now I would say that we do more collaborative projects with community organizations. As one example, the Acadian provincial association in New Brunswick came to us and said it was doing a campaign across the province to educate Acadians on their language rights, and asked if we would be interested. Of course we were. What we provide is our expertise, because a lot of the time these organizations don't have the legal expertise in language rights. We checked their stuff before it went on TV and radio, and we also provided funding.

Another example is the Canadian Teachers' Federation. It wants to check all the curricula all over Canada to see what the provinces have in their curricula to teach language rights, the vitality of communities of linguistic minorities, etc., in their classrooms. Basically, we've said yes to that project as well, of course. We do the study with them, we check for the validity of the project and the final document they provide. They use that document, which is basically a study of what's missing and what's good across the provinces when it comes to their curricula on language rights, and they go throughout the provinces and the governments and they tell them what they're doing well and make suggestions as to how they might improve. We've helped them with that project.

As I said, the information and promotion component has evolved over the years. We have a website that is very complete. You're welcome to visit it. It tells you all about our funding, as well as trying to say in simple and clear terms what our language rights are, as well as providing different ways of learning language rights for different learners, adult learners. In this component we provide $5,000 for impact studies. This goes through the expert panel, and it studies a new law, a new decision, and the impact of this new decision or new law on the communities and our language rights.

We basically have two other types of funding: ADR and legal remedy. The ADR is the alternate dispute resolution, so mediation, negotiation, etc. That's mandatory and was part of the out-of-court settlement. You have to do it before you can get funding for litigation. Conflict resolution as part of litigation is another component, but it's part of the litigation itself. The trial judge or the law in that province says it is mandatory that they do that ADR. We fund that as well. Each is separate, $25,920.

Exploratory study is really at the beginning when the individual or organization is not sure about their rights and they want to have legal advice, so we provide $5,000 for that. Their legal remedies are all the ones you see listed, and those are the different types of funding that we provide.

With respect to the eligibility criteria, for all our funding you need to be an individual or a group of individuals whose constitutional language rights may have been infringed, or a non-profit organization that has members who are individuals whose constitutional language rights could have been infringed.

All applications must concern constitutional language rights, obviously, because our mandate is the advancement and clarification of constitutional language rights.

For the legal remedies applications, you also need a test case. A test case is one that has never been decided in court, or it has been decided in court but you have different jurisdictions that are contradictory, or it has never been to the Supreme Court of Canada and it could be useful if it went to the Supreme Court of Canada. The staff and the analyst here provide a recommendation on the application as to whether it is a test case and whether it meets all the eligibility criteria. But it's really the expert panel that looks at these eligibility criteria and decides whether that application will receive funding or not.

The next slides are all graphs and they're pretty self-explanatory. The green line is the applications we've received and the red line is the applications we've funded. As you can see, we've gone up every year in the number of applications we've received, but our funding hasn't changed. That's why the red line is trying to keep up. Over the years, and we've been open since December 2009, we've refused 14 applications that were admissible, that did respond, that did meet our eligibility criteria, but because of lack of funding the expert panel had the hard choice of not funding those applications.

In this slide, the blue column is how much money applicants are asking for when they apply to us. The red line is how much we've approved. The green line is how much they actually spent. I'm only able to provide you the data for 51 completed files, because at the end of the file when they've done their case, we ask them to give us a financial report. In that financial report, they tell us what their actual cost was. I'm only able to give you the data for completed files, because I don't have that data on the other files.

I thought you may be interested in the next slide. It's the number of applications we funded per constitutional language rights field. Educational rights has always been the one where we receive the most applications, and that's what we fund the most. After that, it depends on the year, but mostly it's linguistic equality and rights to communications and services from the federal government and from the Government of New Brunswick.

The green line represents judiciary and legislative rights.

The next slide is per type of funding. Each colour is a year. It tells you the number of funded applications per type of funding that we provide every year. If you look at our last year, which just finished at the end of March, you will see that the impact studies and ADR were funded quite a bit.

The last one is about ADR files. These are the ones that are mandatory because it says so in our contribution agreement. That came from the out-of-court settlements before litigation. There are exceptions, but in most cases they have to do this before they can get litigation funding. The first column is how many applications we've received since we opened. We've received about 53 and we've funded about 39. Of those 39, about 18 are completed. Out of those 18, 10 went to trial; they came to us and applied for funding for a trial. About 4 of those 18 were completed because there was a partial or a complete resolution of the problem. That tells you how the ADR files are doing.

Thank you for your attention.

[The Chair, Liberal, Anthony Housefather]

Thank you very much, Madame Boudreau.

We'll now go to Mr. Badiou.

[Noël Badiou, Assistant Vice-President, Equity, Diversity and Human Rights, Laurentian University, As an Individual]

Hello and thank you, Mr. Chair.

Thank you for inviting me to appear before the committee today.

I am currently assistant vice-president of equity, diversity, and human rights, at Laurentian University. Between May 2001 and June 2008, I was also executive director of the Court Challenges Program.

I understand you have already received a lot of information about the former program so I will give you my personal views on the program.

The Court Challenges Program was a superb and uniquely Canadian tool designed to make the justice system more accessible to the most vulnerable and underprivileged Canadians. In my opinion and that of many others, the program also strengthened Canadian democracy by allowing the most disadvantaged Canadians to participate in the process of clarifying the Canadian Charter of Rights and Freedoms and the Constitution.

Moreover, it was an inexpensive and very effective tool for government. Between 1994 and 2006, a number of important and influential cases were funded by the program and had a profound and positive impact on Canadian society. I am very pleased that the government has decided to reinstate the program, as set out in the budget.

The excellence of the program was recognized by various UN committees and by Ms. Robinson, former UN High Commissioner for Human Rights, during her visit to Canada. When she visited Winnipeg, in 2003, I believe, she noted that the federal government's support for this program demonstrated its commitment to giving the most disadvantaged members of our society better access to justice.

Those are my comments. I simply wanted to say that this uniquely Canadian program is a necessary and very valuable tool for our society.

[The Chair, Liberal, Anthony Housefather]

Thank you, Mr. Badiou.

You have the floor, Mr. Bhabha.

[Prof. Faisal Bhabha, Associate Professor, Osgoode Hall Law School, York University, As an Individual]

Thank you to the committee for having me here.

I want to make the best use of my time, so I'm going to try to stick to my notes. If you want to interrupt with questions, that's fine. If you want to let me know that I've gone over time, that's fine, too.

[The Chair, Liberal, Anthony Housefather]

I'll let you know, but don't worry, you won't be interrupted with questions because we have a question period for the panel after you speak.

[Prof. Faisal Bhabha]

Okay. Thank you. Lawyers get used to being interrupted by judges when we appear before court, so this is a bit of a friendlier environment, I imagine.

[Voices]

Oh, oh!

[Prof. Faisal Bhabha]

In the early to mid-2000s, I was a lawyer practising in a small human rights firm where about 20% of my work was funded by the court challenges program.

I speak today from a couple of perspectives, both as a lawyer who formerly worked for clients who benefited from the program, who otherwise might not have been able to bring their matters, but also now as a lawyer who is mostly an academic. I am a full-time academic. I still dabble in practice. I teach. I research on constitutional equality, statutory anti-discrimination, and issues of access to justice in the legal profession.

The court challenges program provided funding that enabled lawyers to do important work that would not otherwise be done. I'm speaking in the context of the section 15, or equality rights, portion of the program. It was quite properly subject to full and independent evaluation of its activities every five years, the last of which was carried out in 2004, when it was found to be meeting its objectives in a cost-effective manner. As a result, at that time its funding agreement was extended for another five years, which would have gone to 2009.

In fact in May 2006, when Canada appeared at the UN Committee on Economic, Social and Cultural Rights just months before the fateful cancellation of the program, Canada's written submission to the committee described the program as one of the measures adopted by the government to promote “the equality rights of historically disadvantaged groups”. That is, the government was highlighting the program on the world stage as something that we do proactively to advance equality.

There is no question that the court challenges program was critical to the advancement of equality rights in this country. It helped score key victories. It helped make the jurisprudence around section 15. It in fact has radiated to shape the content and character of the country. We're known internationally for many of the principles that came out of the court's interpretation and application of section 15. The program was good for equality in more ways than merely challenging laws and winning victories in court. It promoted legal engagement by groups historically marginalized, developed education opportunities for young lawyers like me and for many others I saw and have known through my professional activity, and helped develop communities. I'd like to speak about one particular example in which this became very evident.

In February 2005 the African Canadian Legal Clinic in Toronto convened a national consultation to discuss the issue of security certificates, which at the time was a pressing issue for many members of marginalized communities. The session brought together immigration lawyers, constitutional lawyers, law professors, representatives of the Canadian Arab and Muslim communities, various organizations, other equality rights-seeking groups, and political activists at large. It brought us all together. I was there as a relatively recent lawyer at the time.

The group shared information and knowledge and brainstormed strategies, including how best to support the case of the so-called Secret Trial 5. That was the security certificate trilogy that ultimately went to the Supreme Court in June 2006 and was decided in 2007.

By August 2005, a year before the case went to court, the groundwork had already been laid by the communities that were interested in the case. Several intervenors sought and were granted court challenges funding to appear, to make equality arguments in the case. Counsel for these intervenors took a lead role in mobilizing communities, engaging members of those communities, doing public events, educating the public on what was going on at the court, and bridging the distance between the bench and the public.

My firm got involved in representing a couple of those organizations. I had the opportunity as a young lawyer to work on a section 15 case, an equality case, which ultimately became an area of my expertise. This was at a critical point in history, just a few years after 9/11, when members of the Canadian Arab and Muslim community were very much finding themselves engaged with the law and with concerns around the application of law.

This case provided an opportunity for members of that community to be involved and engaged and to feel that their voices were going to be heard by the highest court. I can't overstate how important this is from a community development standpoint.

That's just one example, of a particular community that I was involved with, but I know this to be true across the board. I've spent a lot of my time in professional life working in disability rights activism, and I saw how the court challenges program mobilized the disability community across the country. Regardless of what your particular position was on a particular case, when you look at the overall impact of what the program did for communities and for members of those communities working with lawyers, it was constructive. It developed the law, it empowered members of disadvantaged communities, and it provided bridges between those who hold legal expertise and those who need vindication of legal rights.

I want to say a couple of things about what could be improved with the program.

I think the program was constrained in two significant ways. One was that it applied only to the federal jurisdiction. This was a major constraint, and not always a logical constraint. In fact, the issues that implicate equality concerns around disability benefits, social welfare schemes, education, and health all fall under provincial jurisdiction. It was extremely frustrating, as a lawyer, to work with clients and have to separate an individual's or a community's interests into what falls under federal jurisdiction versus under provincial jurisdiction. It just didn't make any sense. The interplay between the federal and provincial, as all of you know, isn't always as neat as our Constitution would like us to have it, especially in the lived experiences of those engaging with the law.

The second constraint was the limitation of viewing equality only the through the lens of section 15. Over the last 10 years, if you look at the jurisprudence of the Supreme Court of Canada, what we see is that equality is being pursued in many other areas of the charter, in particular section 7 and section 2. These are areas wherein fundamental rights are being advocated and in which equality is being used as a lens to interpret these other rights.

I would strongly urge any future program to not have overly restrictive terms of reference or rules around how to frame arguments. That can unduly restrict lawyers working with their clients from advancing what the mandate of the program should really be. I would thus urge you to think more broadly and flexibly about what equality arguments are likely going to look like, going forward, and would urge flexibility in that respect.

Thank you for your time.

[The Chair, Liberal, Anthony Housefather]

Thank you very much for that presentation.

Now we get to questions. For those on the panel who haven't yet experienced how questions work, because this is a one-hour panel we're going to do one round of questions. You're going to have six minutes of questions first from the Conservatives, then from the Liberals, then from the NDP, then from the Liberals. Given that we're doing only one round, I'll then come back to the Conservatives and the NDP to ask whether they have some short questions to fill in the gap.

We're going to start with Mr. Nicholson, who basically, just for Professor Bhabha's information, acts somewhat as Justice Scalia used to act at the Supreme Court, so be ready.

[Voices]

Oh, oh!

[Rob Nicholson, Conservative, Niagara Falls, ON]

I'm not sure what that means.

[The Chair, Liberal, Anthony Housefather]

It means you ask very good and very fast questions.

[Rob Nicholson, Conservative, Niagara Falls, ON]

I was just about to thank them for appearing here today and tell them how much we appreciate their perspectives on these.

It's important that we hear what you have to say, because you have lived this and have been a part of it over the years.

Madame Boudreau, you said that you're moving more towards the education campaign and that it has grown in recent years. Is the reason for this that there was less litigation, fewer applications? You said there was a greater rate of application, but you said there was a greater emphasis on education. That makes sense, but what was driving it?

[Geneviève Boudreau]

Actually, the funding allotted to information and promotion has stayed basically the same; it's just our activities that have changed. At the beginning, people didn't know us, and we wanted to make sure that we knew them, so we consulted people. We went all across Canada and did a lot of presentations across Canada. I met many government officials and organizations, just so that people were aware of the program and I was aware of their needs. Then as time went by, people actually knew us. That's why the number of our funding applications kept going up and up.

Now what happens is that people come to us and tell us they're doing such and such on language rights and that they think their members—such as Acadians in New Brunswick, in the example I used—need to be educated on what their language rights are, and that they think this is the medium to do it—radio, television, websites, and social media. We just went on and more or less tagged on to their project.

All I meant by that was that it has evolved and the activities have changed according to how the program has evolved and how people have come to know us.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Your program, though, is independent from the court challenges program. You continue, and you would expect to continue, and I believe there have been provisions quite apart from the government's decision to start funding the court challenges program.... Yours is one that would continue.

[Geneviève Boudreau]

I'm not sure what the decision will be. The contribution agreement that we have presently ends at March 31, 2017. Since the challenges program has been abolished, the language rights support program was created, but only for language rights. It didn't have any quality component like the old program.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Let me ask a question about one of the slides that you put up on the board here that showed the levels of funding. One of them was, I think either $25,000 or $35,000 for an appeal.

Are there cases that get settled in which you decide that you will not be funding the appeal because perhaps the board, tribunal, or the court got the decision right in the first place? Do you make that decision?

[Geneviève Boudreau]

Maybe Professor Pierre Foucher wants to answer that.

[Pierre Foucher, Analyst and Professor, Language Rights Support Program (LRSP)]

In short, the answer is no, because if it's appealed it's because some parties think there has been a problem with the first decision. Since the mandate of the program is to clarify the rights, a decision of a court of appeal is always useful.

[Rob Nicholson, Conservative, Niagara Falls, ON]

They'd always get the funds for the appeal.

[Pierre Foucher]

I can't remember a case where we refused funding on appeal.