Justice Committee on April 21st, 2016

[The Chair, Liberal, Anthony Housefather]

I'd like to bring the committee back into session.

Welcome to this meeting of the Standing Committee on Justice and Human Rights.

We have the great pleasure of welcoming our very distinguished witnesses today.

I would like to welcome Maître Eric Maldoff, who is a long-standing pillar of Quebec's English-speaking community and who will be testifying.

I'd like to welcome two other pillars of the community, Kathleen Tansey, who is the vice-president of the board of directors of the Court Challenges Program of Canada, and Frank Verrillo, who is a board member and a former school board commissioner.

It gives me great pleasure to see all of you and to welcome you to this committee, and I know all of the members join me in welcoming you.

I'm going to turn now to Mr. Maldoff to start.

[Eric Maldoff, Lawyer, As an Individual]

Thank you very much, Mr. Chair, and members of the committee.

I understand I'm under a very tight leash in terms of time, so I'm going to speak quickly and breathe little.

I'd like to address three aspects of the question that's before you. One is the importance of court cases to our community in the past. The second is what I anticipate may be coming down the pipe in terms of a need for this. Third is some of the elements of what I think should be part of a renewed or reinstated program.

Very quickly—and I'll be happy to discuss it more in questions—there are a number of cases that have really made a difference for our community.

There was the Blaikie case and the Manitoba Reference case in 1979 and 1984 in which the Supreme Court upheld the bilingual courts and legislatures provision of our constitutions and struck down unilingual courts and legislation provisions in Manitoba and Quebec. This was vital to us, because courts and legislatures is a fundamental core to the whole practice of our democratic system.

In 1984 the PSBGM case, which was decided by the Supreme Court, broadened access to English schools from Bill 101, which stipulated that only children of English people educated in English in Quebec could go to English school. It was broadened to children of Canadians educated in English in Canada who could go to English school.

The community cannot survive if it cannot revitalize itself and if it cannot be a welcoming community. We're far from being in an ideal situation right now, but that case moved a long way in helping to stabilize the decline, rather than have us in free fall.

In 1984 and 1990 there were the Ontario Education Reference and the Mahé case. I think the Mahé case is compulsory reading for this committee. It's brilliant. It held that section 23, minority language education rights, include control and management for the linguistic minority. That, by the way, cleared the way for a constitutional amendment in 1997, which allowed us in Quebec to move from a confessional school system to a linguistic school system because of the constitutional guarantee that we received for the linguistic system replacing the confessional guarantee. That was important to allow us to have critical mass and to start focusing on a modern reality.

With the Ford case in 1988, the Supreme Court struck down the unilingual French signs law in Quebec and in that made a wonderful statement that: “Language is not merely a means or medium of expression; it colours the content and meaning of expression.” That was the beginning of the court really starting to elaborate its thinking on these things. The sign issue was important, because there was an attempt to deny our legitimacy, our visibility, and our presence in the province. We are not visitors, we are not interlopers, and we are not the extension of somebody else. We are a community that has been in this province for several hundred years. We have built the province, we are part of the province, and we are not going to be treated as some sort of passing, transient people who drifted in from British Columbia.

Then there was the Montfort Hospital case, which was very important. The Ontario Court of Appeal found an unwritten constitutional principle of a minority as having a right to some measure of control in their health services and health institutions. That case became very important to us in the restructuring of the health system—which just took place in Quebec and which was dramatic—where our own institutions that we controlled and managed were being wiped out. The threat of using Montfort to stop that at least got us to the table and enabled us to get some strengthening of the minority language guarantees within the system, although the control and management is still unresolved.

For the future, in the Mahé case the court said, speaking through Chief Justice Dickson: “minority language groups cannot always rely upon the majority to take account of all of their linguistic and cultural concerns. Such neglect is not necessarily intentional”. I couldn't say it better myself. Frankly, it should be said and understood clearly.

It's an uphill battle, and often it is a battle. It is important to have the ability to turn to the courts and say, if you don't want to listen, then we have somewhere to go to talk this through. Otherwise rights become dead letters. We will continue to need the courts in the spirit of what the court, itself, recognized, that the community is under serious pressure.

I want to make a distinction. The English language is not threatened. It's a global language, it's the currency language of business. It is not a threatened language. The community is threatened as a community, as a vital entity that can replenish itself, that can play an active and full role. We're an aging population. Our young people have been leaving in droves. There are concerns about how we will tend to the aged as years go on. Our institutions, which we built, don't have the critical mass of community to continue to support that, not because the community doesn't believe in the institutions, they stopped believing in the place. That's an important issue. The community got tired and is getting tired, because every day it's another battle. Looking to the future, we're going to need this program. We're going to need it for education. The government wants to wipe out the constitutionally protected school boards that we have. That will not go down easy. The Supreme Court in Mahé was clear about the roles that schools play in terms of being a focal point of community life, community identity, that education is essential for language, culture, and identity. That case will go to court unless the government decides to find a way out.

The bilingual legislative process that the Supreme Court recognizes must take place is not being respected in Quebec. Frequently laws are being adopted only in French and English translation delivered after they are set. They are probably invalid. But on top of being invalid, they're being translated by people who are not experts in translation in English. The result is that we're getting versions of a law that are incomprehensible or inconsistent with the French version, with the result that after that people say, you can't bother with the English version, even though our law say both versions are of equal weight because the English version often makes no sense or is contradictory. This has been brought up. It's been discussed. It's been for years and years, and it's one for which maybe at the end you have to move the yardsticks with the court.

With regard to health and social services, the reform has put much more more control in the hands of the bureaucrats who are exceeding their jurisdiction in issuing directives controlling the administration of our institutions. I suspect that if this doesn't stop and if we can't find a way to stop it, it will end up in court.

With regard to education, there is a new curriculum that's been brought out by the Government of Quebec in history. They wrote a history that by all accounts is a torqued history that is not a fair presentation of Canadian history. Mahé has held that curriculum is one of the essential elements of control and management of education. I expect that, in due course, if the government is not willing to fix the curriculum that again will be challenged. Furthermore, we get a lot of our texts and stuff translated from French two years after the French schools have had them. That's just not fair and it's not proper and it's not giving us equal access to education.

Public service is a chasse gardée of a certain group of people. Thirty years ago, less than 1% of the public service were English-speaking Quebecers. Thirty years ago government started promising that they would change that. Thirty years later less than 1% of the public service of Quebec are English-speaking Quebecers. Why do we care? They shape policy. They shape thinking. They guide direction. They give rise to the legislation that gets adopted under section 133. Without the input of the community there's a complete lack of sensitivity and understanding and, as the court says, it's not necessarily bad faith but it's happening and it happens all the time.

In health we have the Montfort case. We access to services but now what's happened is that we are getting directed that we can't put up bilingual signs that direct people to the services. At some point we're going to have to get people to understand that health services include access to the information about the services and where they are. Again, you talk and you talk and they ignore and they ignore. Then you have to do something, through a new program or a reinstated program.

As the Supreme Court found in Mahé, language rights are a separate class of rights. They are distinct from equality and multiculturalism rights, which they see as legal rights. That distinction is important and therefore we need a different panel or program or aspect of the program that is budgeted for that.

It has to be autonomous. It has to be properly funded. It has to be sustainable. It has to expand into federal laws like the Official Languages Act and it must be dedicated to research and proceedings. ADR should not be a precondition to access. Thank you very much.

[The Chair, Liberal, Anthony Housefather]

Thank you very much, Mr. Maldoff. I know the panel looks forward to questioning you on some of these points.

I'd like to appreciate the fact that Justice Bastarache has now joined us.

It is a great pleasure to welcome you here, Justice Bastarache. We will give you time to get organized. We will go to Ms. Tansey, and then we will give you the floor.

[Michel Bastarache, Legal Counsel, As an Individual]

Thank you for welcoming me. I apologize for the delay, but as you can see, I have a rather serious back problem. It is worse than normal this morning.

[The Chair, Liberal, Anthony Housefather]

Don't worry. I will give you time to get organized. We will go to Ms. Tansey, and then give you the floor.

[Michel Bastarache]

Thank you, but that will not be necessary.

Today, I want to talk about the Language Rights Support Program. The program up for reinstatement may well be somewhat similar to the one in place now. I do, however, think that it is lacking in some regards. I also think that the former program had some problems.

First of all, I think it needs to be a program that deals precisely with proceedings. Personally, I think that if we establish a program with a “research” component, a “public information” component and a “discussions for out-of-court resolution” component, it will no longer be the type of program we need.

Those things can be done in other contexts by other institutions. The Commissioner of Official Languages is responsible for raising public awareness about linguistic rights. Research is conducted in universities and if research is not directly linked to proceedings, it leads instead to publications, conferences and discussions. The problem, however, is that available funding for proceedings is drained. And those funds are always in short supply.

I have used both programs on several occasions, and I can tell you that it is extremely difficult, because the proceedings are almost always against the government, which has virtually unlimited resources in this area. Proceedings have been initiated against the federal government on the constitutionality of regulations under section 20 of the Charter. The government has four full-time lawyers and an outside office assisting it. On our side, we have a total budget of $150,000 which covers expert fees, travel, court fees, as well as our lawyers' honoraria. And the issues drag on.

It is not really a matter of adding money, but ensuring that available funding targets specific areas and is used as initially intended.

Then there is also the issue of administration fees. I don't know what the current program administration fees are, but the administrative component under the previous program was hard to understand, because the annual report stated that 35% of the funding was earmarked for administration.

I, myself, sit on boards for foundations, and I don't know any of them that spend 35% of the funds. Funding is limited and people are forced to try mediation; money is spent and conferences and meetings are held. I attend those conferences. The problem is that they bring together people who are already on side and who ultimately end up talking about the cases they are defending. I believe that can be helpful, but that duty lies with the universities and bar associations, not with an institution like that.

Firstly, the program's independence needs addressing. Why is that so important? Because the proceedings are constantly initiated against governments. If the program depends on the government, if the government is in a position to, at any time, threaten to withdraw funding, the program is not independent.

I believe that the best form of independence would be to set up a foundation so that it would not be necessary to seek out funding every year. Sufficient funding would therefore be available to maintain and administer the program in accordance with very strict rules regarding the spending of funds, for reports and audits. I truly think that is a possibility.

Second, there is the members' appointment. The University of Ottawa currently handles the program, though third parties believe that the program focuses on Ontarians and favours them. In addition, several University of Ottawa professors participate in the program.

I believe that the program should not have such ties and should be truly independent. It can be physically located in such an institution. However, if we want to go down that path, I believe that the programs—because you're planning for two, one for section 15 or general rights and the other for language rights—should be housed in the University of Moncton. At that university's law faculty, there is the International Observatory on Language Rights that has a research branch with the participation of foreign experts, etc. It would be the logical choice for this program as there could be co-operation in research, in conferences, and that kind of thing. I know that at the University of Ottawa, several chairs and institutions address the issue of human rights; we could therefore place the other institution there.

Of course, we would have to set up a board of directors though without necessarily having too many members, as we are talking here of management, and not the management of hundreds of millions of dollars. We could therefore have a structure that represents every region of Canada, and simply ensure that members have a certain level of management skill.

There would have to be a science committee that would analyze requests. It is not difficult to identify potential members on that front, in the field of languages, who are specialized and sufficiently skilled. I think that we can count their numbers on our fingers. We are not talking about finding people who do litigation, but members who are aware of the importance of language rights. They must above all be realistic and must realize that these processes have a direct impact on Canadians.

As it stands, the vast majority of subsidized cases are linked to section 23 of the charter, which is about the right to education. However, a clause in the program is incompatible with this, as it says that it will fund cases that will lead to case law. If everywhere in Canada, the issue is that provinces refuse to fund building schools, does that therefore mean that we will only be funding one school in the whole of Canada and that the others do not count? This goes against logic.

Moreover, people will have to turn to ADR, which is essentially an attempt at mediation. Can a fundamental right truly be addressed through mediation? We cannot simply choose to acknowledge half of our constitutional rights. Either we uphold them, or we do not. I believe that one should be able to request funding for mediation in appropriate cases, but I do not think that it is necessary in all cases. I gave you an example of this earlier on. Section 20 addresses the right to public services when there is a sufficient demand. However, Statistics Canada has decided that sufficient demand cannot be determined by the number of francophones in provinces where French is the minority language, but by the number of people who speak mostly French at home. This therefore excludes an enormous amount of people.

Do not forget that in the case of francophone communities outside of Quebec, over 60% of people are in mixed marriages. Suppose the children go to a French school or an immersion school, and are asked whether they speak more French or more English at home. Given that these children speak more often to their mother than to their father, if the mother is anglophone, 100% of these people will be counted as not speaking French and not requesting services in French. This system was established in the early 1980s, but doesn't meet any sort of scientific criteria. Indeed, no studies have been done on the subject.

Now with regard to the program's jurisdiction—and my friend Eric Maldoff has already mentioned it—it should not only affect rights that are directly tied to the charter, but all federal language rights. At least 30 Canadian statutes include language provisions, not only the Official Languages Act.

Here is an example. Today, the newspapers are running a good number of articles on the National Energy Board's public hearings. The NEB claims that it is a quasi-judiciary organization. Therefore, all documents submitted by parties do not have to be translated, as they are considered to be documents tabled during a trial. That would mean that in a hearing that would take place in Montreal, for example, the requesting party would be able to table all the documents only in English.

However, pursuant to the National Energy Board Act, the board must organize public hearings. The board tells us that public consultations are not a service to the public, but rather a judiciary service. One must remember that the board does not deliver licences, it merely makes recommendations to cabinet. All of this is rather questionable.

That is why requests for funding should, in my opinion, be tabled in view of a legal process that seeks to implement language rights pursuant to the charter or a federal statute.

What is important, in my opinion, is the program's independence and the fact that the focus is placed on the trials. We need to give up the notion of test cases as well as that of mandatory mediation before we reach the courts.

[The Chair, Liberal, Anthony Housefather]

Thank you, Mr. Justice Bastarache. We will have questions for you after the presentations.

Now we are going to move to Mr. Verrillo and Ms. Tansey.

Welcome. Thank you so much for being here.

[Kathleen Tansey, Vice-President of the Board of Directors, Court Challenges Program of Canada]

Thank you very much for having us. Good morning to everybody. Justice Bastarache is a hard act to follow.

We'd like to express our thanks to you, Mr. Chair, to the justice department, and to all of the members of this committee for inviting us here to participate today.

I'm Kathleen Tansey. I'm co-chair of the language rights panel, and I'm also co-chair on the board of directors.

This is Frank Verrillo. He is the English language representative on the board, and a member of the board of directors as well.

We've come to speak to you today about the Court Challenges Program of Canada, the CCP, to tell you what this program has done and still does represent in accessing justice and the protection of human rights in Canada.

You know the history, but I'm going to go through it briefly.

It was first established in 1978 by the Trudeau père government after important language cases had been brought forward in Quebec by individuals at tremendous personal financial cost and expense.

It had been recognized that because of the fundamental importance of these rights in question, and the staggering costs of litigation that were required to help enforce these rights, there was a pressing need for a financial contribution program to help members of official languages minorities bring their cases before the courts, and to clarify and enforce our constitutional language rights when government legislation, policies, or practices denied or obstructed these fundamental rights. Even 38 years ago, it was clear that without such a program or mechanism in place, official language minorities would have little or no voice to have their rights recognized or respected. Without the CCP, and its predecessor, such litigants would be deprived of any access to justice.

The mandate of the CCP was to provide limited financial support for minority language right litigants to challenge federal legislation. It was expected that it would not cover the entire costs, but there would be other elements, such as the constitutional lawyers giving a reduced rate, or whatever it happened to be, in order to take these cases forward.

In 1982 the Canadian Charter of Rights and Freedoms was enacted. The mandate of the CCP was expanded to include language rights entrenched now in the charter.

In 1985 the equality provisions of the charter came into effect. The Mulroney Conservative government expanded the program's mandate to include equality rights litigation for those who wish to exercise their equality rights guaranteed to them under section 15 of the charter. Without this in place the charter is certainly a noble inspirational and laudable document, but it lacked any real teeth or enforcement mechanism—pretty on paper, but nothing more.

The glaring inequity and imbalance between the opposing parties, with the rights-seeking litigants on one side and the government on the other side, exist on several levels. Primarily it's mostly on the financial level, so a program that provides contribution or funding for these test cases is essential. The financial inequality alone constitutes such a serious impediment as to effectively deny access to justice for those who wish to assert their constitutional and equality rights under the Constitution or the charter.

In 1992 Mulroney cancelled the CCP. The Official Languages Commissioner ordered an impact study done at the time. It identified and confirmed the deleterious effects of the cancellation of the program on official language minorities, their communities, their development, their enhancement, and their vitality. It underlined as well the importance of the program in promoting and in implementing constitutional official language minority rights.

In 1994 the Chrétien Liberal government, restored to power in 1993, reinstated the program. The program proceeded to exercise and fulfill its mandate to test cases of national significance in constitutional language and equality rights, and to provide access to Canada's official minority language groups, and its historically most disadvantaged, vulnerable, and marginalized citizens who had been denied and excluded from full participation in Canadian society.

On September 25, 2006, the Harper Conservative government, without any notice or any consultation with the Court Challenges Program or any of its stakeholders, and with no consultation whatsoever with Canada's official language minority communities, with equality-seeking groups, or with Official Languages, abruptly abolished and axed the Court Challenges Program.

It did so on the pretext—and believe me, a pretext it was—that the CCP did not provide value for money, was not accountable or effective, that there was no need for further test cases and, my personal favourite, that the Conservative government would not enact unconstitutional legislation.

There were two independent reviews. In 1997 and 2003, there were two extensive evaluations and reviews conducted on the Court Challenges Program. They were conducted by outside independent research firms.

I'm going to take some words from this to let you hear what they said. Both found the Court Challenges Program “effective and accountable”, and determined that it provided Canadians with value for the money spent. These are words from the 1997 review:

The importance of the program's financial assistance on cases is undisputed. It has supported many cases and made an important contribution to constitutional law.

Maître Maldoff listed some of them. You know there are so many more.

It has been involved in almost all of the litigation across this country on educational rights for minority official language communities. On the equality side, the CCP has sponsored several cases that, while not necessarily successful before the court system, raised awareness of the issues, and ultimately resulted in changes to the law.

In the 2003 Prairie Research evaluation, they stated that Court Challenges addresses the need that led to its creation. “Its activities are consistent with strategic objectives established by Heritage, especially those relating to citizens' engagement and the promotion of official languages.”

They went on to say, too, that the charter and the Constitution are still alive, and consequently “there will continue to be dimensions of the constitutional provisions that require clarification indefinitely”.

The evidence collected indicates that the Program has an effective management structure in place, and that the procedures followed to review applications and allocate funding do reflect good practices in that field. [...] The Program has been successful in reaching out to members of linguistic minorities and disadvantaged Canadians. [successful in supporting important cases that have a direct impact on the implementation of rights and freedoms] The evaluation indicates that many of these courts cases would never have been brought to the attention of the Courts without the CCP.

There was a public outcry in 2006 when the Harper government abolished the Court Challenges Program. Petitions from across Canada were signed; complaints were filed. There were 118 complaints filed with the Office of the Commissioner of Official Languages. The vast majority were protesting the abolition of the Court Challenges Program.

As Graham Fraser will be addressing this committee next, I'm going to defer to him on the steps he took and his findings.

Suffice it to say that the FCFA sued the Harper government over the abolition of the Court Challenges Program. The Commissioner of Official Languages intervened in the case on behalf of the appellant, the FCFA, and an out-of-court settlement was reached that resulted in the creation of PADL, the language rights support program, in 2009.

Am I still in my eight minutes?

[The Chair, Liberal, Anthony Housefather]

You're getting close.

Take another minute and a half and give us your recommendations.

[Kathleen Tansey]

I'll get to the conclusions, then.

There was absolutely no justification for the abolition of the Court Challenges Program, either in 1992 or in September 2006. In all the years of its existence, it had excelled in the performance of its mandate to clarify and advance constitutional rights and freedoms related to equality and official minority-language cases by providing financial assistance. It has been the major force and instrument in obtaining access to justice for official-language minorities and equality-seekers from its inception and, I would say, right up to the present day.

Yes, I did say “present day” because, despite rumours of its demise, the Court Challenges Program is still very much intact, active, operational, and viable. Its seven-person board of directors and the members of both rights panels—the language rights panel and the equality rights panel—have remained in place since September 25, 2006. The board submitted persuasive arguments. Harper would have cut every cent from the program immediately on September 25. We presented arguments that convinced the very reluctant government to allow the Court Challenges Program to continue supporting and funding test cases that had been approved by the two panels prior to the cuts. We won the right to have these cases funded up to final resolution or final appeal. The Caron case was just decided in January before the Supreme Court of Canada, and other cases continue, too, which is proof of the amount of money and time it takes to fund a court challenge.

As a result of this small victory for the CCP stakeholders, all members of both panels and the board of directors made commitments to stay in place and continue their work and functions for as long as it took to complete this mandate, or until the Court Challenges Program was restored and reinstated. It has been almost 10 years since we made that commitment. With the exception of one board member, who retired in January 2015 and was replaced with Mr. Frank Verrillo, we are all still here. For the record, all of us on the board and the two panels are unpaid volunteers. Nobody has bought us a cup of coffee in 10 years. May I ask you to consider what this indicates about the Court Challenges Program and its invaluable work on behalf of our official minority-language communities and equality rights communities to inspire that level of commitment?

Our sincere thanks to this government and to this committee, and especially to Justice and Heritage, for conducting consultations—that certainly was not done in 1992, and it was not done in 2006—with the communities and stakeholders in an attempt to determine how access to justice can best be achieved.

[The Chair, Liberal, Anthony Housefather]

Thank you very much, Ms. Tansey.

Through you, to all the members of the board of directors and both panels who have stayed in place for the last 10 years, thank you very much on behalf of myself and the members of this committee for all the work you have done as unpaid volunteers, and for making sure the cases that were approved before the termination of the program have been continued to fruition.

We shall now begin our question period.

We will begin with MPs from the Conservative Party, who have six minutes.

Mr. Cooper, you have the floor.

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

Thank you very much to the witnesses for their testimony this morning. It was very informative. I would like to direct my first question to Mr. Bastarache.

Certainly, the Court Challenges Program predated the charter. However, with the adoption of the charter, there was, I think, a widespread consensus that there was a need for a Court Challenges Program, that the Court Challenges Program needed to have its mandate expanded to test cases, to develop a body of case law. I happened to run across an article in the National Post that was published on April 6, 2000, in which you are quoted, particularly in the context of intervenors who appear before courts. You were quoted as saying, “we have lived with the Charter for 18 years.... There isn't the same need there was in 1982 to obtain help from intervenors”.

It has now been about 34 years since the Charter of Rights was adopted. Do you hold the same view, and how would that square in terms of a mandate of an expanded or renewed Court Challenges Program?

[Michel Bastarache]

I'm glad that you asked that question, because a lot of people would think that after 34 years the law must be settled. Why do we still need cases to be funded?

You may notice that in all provinces except Newfoundland there have been cases with regard to the educational rights of the language minority. This means that no province has readily accepted to implement section 23 of the charter. Some of the cases are still before the courts. There is one in the Northwest Territories, one in the Yukon, and one in British Columbia. There is one about to start in Saskatchewan. In New Brunswick, the only official bilingual province in this country, there were four language cases against the government last year, and there are still two going on. Why would you say it's not needed any more?

I'm saying that it's needed for the implementation of the rights. It's not so much because we haven't determined the scope of the rights. This is why test cases are not really what we need, although there are still a number of issues that have to be clarified. One of the most important issues is now being raised in the Northwest Territories case. In a few words, in the Northwest Territories there was a lawsuit by the francophone community to get funds to enlarge the school, because it was too small. The government decided that there was a way of restricting admissions so that they wouldn't have to enlarge the school. This they did by passing a regulation under which only persons who are qualified under section 23 are admissible. It means if you move here from France and have unilingual French children, they're not allowed in the French school, because they're not Canadian citizens. To add to that, they decided that preschool, which is in the same building, had to be in English, because it's not covered by section 23. This means that you're going to cut in half the number of children going into the first grade.

I haven't changed my mind. What has changed is the context. But there is still a tremendous need. I think the Court Challenges Program has been well run. It has been effective and is still needed.

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

Thank you for that.

I would invite your comments, Mr. Bastarache, on how the replacement language rights support program has worked over the last eight or so years.

[Michel Bastarache]

I think all important cases have been funded by the program. The reason it's so needed is that in almost all cases it's community groups or individuals trying to develop or start these cases. None of them has any funds. Right now what is happening is that when the funds that are available are spent, the community groups try to raise additional funds in the community. That's very difficult.

The other thing you have to realize is that there is a personal cost that is very important. I'll give you a small example. Before I became a judge, I started all the cases in Prince Edward Island. Three mothers of children in the first or second grade started the case. We won that case. But then, two of these women lost their jobs. They were working for the provincial government. A lot of them had tremendous problems in the community because they were seen as troublemakers and people who might cause strife between the anglophones and the francophones. It's not easy to find people who are willing to commit to these things.

The other thing you have to realize is that these cases last for three or four years. That's a long time. You can convince people to start something for a few months, but three years is much more difficult.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

We're going to go to Mr. Fraser.

[Colin Fraser, Liberal, West Nova, NS]

Thank you very much, Mr. Chair.

I would like to thank witnesses for being here, and for their presentations.

My first question is for Mr. Justice Bastarache. I come from West Nova, in Nova Scotia, which is home to many Acadians. Our country's language rights are essential for these people. I personally started to learn French in first grade in an immersion school. I am an anglophone, but I have spoken French for a good number of years. Supporting language rights is therefore important to me.

I would like to know what constitutional provisions targeted by the Court Challenges Program and the Language Rights Support Program still need to be clarified. Could you give us examples of provisions that have not yet been clarified?

[Michel Bastarache]

The most important example is the one I have just mentioned, which is access to French-language schools. The extent of the management rights of francophone school boards that were created in certain provinces still needs to be defined. The reason is that establishing these boards follows from a legal decision. Section 23 of the charter does not include the right for the minority to manage its schools. However, the Supreme Court, in the Mahé decision, determined that if a school itself is of the minority, and not for the minority, obviously, there must be a management component. To come back to my example, the question is whether or not Yukon's Francophone School Board management powers include the right to offer preschool education because it is necessary to prepare for the first year of school. Is it legitimate for this school board to decide that a francophone person will be admitted to a French-language school, even if they are not a Canadian citizen?

More generally, there are other inconsistencies. For example, section 20 of the charter deals with the right to public services in one or the other official language in regions where there is a sufficient number of rights holders. It begs the question: how is that calculated? One also wonders if Treasury Board regulations were established arbitrarily, or if they rely instead on scientific analysis. For example, in a small municipality, the decision is that services will be offered if 20% of the population speaks the language of the minority. In another location, there must be 3,000 people who speak the language of the minority. What would happen if there were only 2,950? Would services be refused to them or not? In my opinion, the problem stems from the fact that mathematical criteria do not align with the object of the law, which is to support the communities' development. Consequently, the test should be based on community viability.

In a small community where there is a French-language school, church and cultural centre, I do not understand why services would not be offered if there are only 2,900 francophone residents rather than 3,000. It's for reasons like that one I maintain that it is still necessary to go through the courts. Indeed, the government refuses to meet with us and negociate and revise its policies based on the very purpose of the law.

The situation is truly sad in Canada. Think about it. One can sometimes ask why there are language rights in most countries. Is it to avoid conflict, or for historical reasons? Is there not also a moral basis for them? Is it not a matter of equality, dignity and the capacity to participate in public affairs without having to renounce one's language and culture?

In Canada, that is what the court decided, not the government. It is for that reason we are still in conflict with the government. We do not agree on the very purpose of the law.

[Colin Fraser, Liberal, West Nova, NS]

Thank you very much, Mr. Bastarache.

I have many questions to ask. Do I have any time left?

[The Chair, Liberal, Anthony Housefather]

You have time for another question.

[Colin Fraser, Liberal, West Nova, NS]

I have lots of questions for you, Mr. Bastarache, but in the interests of time I'll move on to Madam Tansey. You mentioned in your presentation that accountability is important for the Court Challenges Program itself in the way it's administered. The way I see it is that the program is there to expand rights, to allow charter-protected people to assert their rights, and also to clarify the position of the charter so that breathes life into the charter and moves charter rights forward.

How do you see that as far as the application process goes to ensure there is accountability in determining which cases are approved?

[Kathleen Tansey]

I can speak from the language panel, and obviously the equality panel has the same procedure.

The Court Challenges Program is accountable to its community. It is community based. It is not an institution. They come from the minority groups. They present their cases. They come to us for funding, and primarily it was a funding program to assist litigants. We had the contribution accord, which was signed with Canadian Heritage, and that contribution accord set a lot of the rules that were to be applicable. For example, the language rights panel, or the equality rights panel, would look to see if it was a constitutional case, if it raised issues that appeared to be of importance to the communities—the linguistic communities in our case—and if it was a question of national interest or potentially a question of national interest. We had to look to see whether the applicant was in fact a non-profit and did require funding, because we do not fund cases for those who can afford them.

Those are the issues we looked at. We weighed, and we balanced. We studied the cases. We studied what had already gone on. We were accountable in the respect that we had to make the best possible use of the money we had, and we had to sometimes select the best cases. Sometimes it was a simple process. Other times we had to send people back and ask them to obtain more documents, or to do a consultation with the community, as Justice Bastarache was just saying. How do you know whether the ayants droit are sufficient to make a case to go forward? It was often an elaboration of action or a consultation with the community before we could look at the case.

These were all issues we looked at. In the same way that we were accountable, and the program was accountable, the Government of Canada is accountable to its citizens by virtue of the charter and the Constitution. We want your accountability, too.

Thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

I'd invite the panel...on Mr. Fraser's question about where there remain rights to be clarified. Bill 86 in Quebec is proposing to abolish the election of school board commissioners. Whether that constitutes a section 23 violation under Mahé to the right of the community to control and manage its schools, to me, would be another point that needs to be clarified.

Mr. Rankin.

[Murray Rankin, NDP, Victoria, BC]

Thank you very much, Chair.

I want to echo the gratitude we all have to you, Ms. Tansey and Mr. Verrillo, for your service to Canada. We are fortunate to have such eminent jurists with us this morning.

In very little time, I want to talk about money and an autonomous administration, which I think Mr. Maldoff and Justice Bastarache touched on. I understand, if my figures are correct, the annual budget of the CCP was about $2.9 million before, and it's now going up to $5 million a year. I believe I'm understanding Justice Bastarache properly that the idea might be to create a foundation. I've heard from other witnesses that there ought to be three streams. There ought to be an indigenous stream, a minority language stream, and a section 15 stream. I've heard about different university models.

I'll be totally candid with you, I'm worried about the administration costs eating the budget. Something that was done under the former Conservative government I commend to you for your consideration, namely with respect to the special advocates program within the Department of Justice, which deals with national security immigration matters. I'm familiar with the program, and there was a very effective way of shielding those people and retaining the autonomy that everyone agrees, I'm sure, is required without having any administrative costs.

Especially when I hear from you, Justice Bastarache, about $150,000 versus the unlimited resources of government and all the cases that are still to be resolved under all three of those streams, I'm thinking we should figure out a way to retain autonomy, but avoid the administrative cost that I fear could gobble up the budget of $5 million pretty quickly.

I would like your respective comments.

[Michel Bastarache]

I'd like to comment on that because I have some figures here. Maybe one of the reasons.... The first program, the Court Challenges Program, not the PADL, had a budget in 2006 of $2,720,000, and they spent $750,000 on administration.