Justice Committee on April 21st, 2016

[Rob Nicholson, Conservative, Niagara Falls, ON]

Was it through the Court Challenges Program or some other one?

[Eric Maldoff]

It was the Court Challenges Program. I can't remember whether Blaikie got funded, because I think that's actually when the government decided to create the program.

[Kathleen Tansey]

That's before my time. I can't answer that.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Thank you very much.

Justice Bastarache, it was an honour for me to be there that day when your colleagues and everyone paid tribute to your service to the Supreme Court. Thank you for your service.

You had a number of comments that I was going to.... I may have missed a bit on the translation, but between governments and the courts, it's the courts that have to ensure our freedoms. I'm sure you would agree that governments have a responsibility to make sure that people's freedoms are protected. Isn't that one of the important, initial—

[Michel Bastarache]

Absolutely, and I think this is where we've had a problem. I've tried to understand why we've had such a problem in dealing with the government. You know, my own interpretation now is that the government doesn't see language rights as community rights. It sees them as individual rights.

I'll give you the example of the Beaulac case. Beaulac, of course, was a guy accused of murder. He was a francophone living in Vancouver and of course he worked in English. The problem, of course, was access to a trial in French.

The decision of the court was that what you should have is a system in which anyone who comes before the court can easily decide whether they want to be judged in French or in English, provided, of course, that he speaks those languages, but the government doesn't see it that way, or didn't see that way. It saw it as “we have a system here that's really totally anglophone and how do we accommodate this person who wants to be heard in French?” They see language rights as forcing them to change their institutions, or to change the way the institutions function or the way they plan things.

There are other cases that brought forward the same problem. I don't know if you remember the case in northern Ontario on the funding for development of small industry. The government had established a very good plan and had consulted with people in the industry, but they had consulted with anglophones in the industry and had developed a plan that was accommodating those needs. When the francophones said that it didn't answer their needs and the government couldn't just translate into English what they had developed, it came before the court. The court decided that if the needs are distinct, you must have two kinds of consultations and develop a program that is not the same but has the same object.

That forces a government to change its administrative organization locally, I suppose, and this is what they find very difficult. Of course, in many, many cases, they just say that the community is so small that it's not really worthwhile. This is where we come in conflict all the time.

I think you're right. The government should itself have an implementation plan that is not based just on the actual right coming from the Constitution but I think on the planning of bilingualism in the service.

[Rob Nicholson, Conservative, Niagara Falls, ON]

I have this one last thing on behalf of the Department of Justice. I remember that at any given time they were in courts on about 50,000 different cases in terms of defending the crown's interests, so I was interested in one of your comments.

You say that the justice department is always fighting you. Again, the government has to be in there, obviously, to make the case, as all solicitors do when they take on a client. The client of the justice department is—

[Michel Bastarache]

What I meant was that the justice department was against us even if it wasn't their business. For instance, in the Northwest Territories and the Yukon, the Government of Canada intervened to support the local governments against opening French schools and giving management to the minority population.

[Kathleen Tansey]

It increased the delay in that case.

[Michel Bastarache]

Basically, we are not just facing one government in those cases. There is a case now in B.C., as you know. You are fighting the federal government, Saskatchewan, Manitoba. Everybody else is on side, too.

[Rob Nicholson, Conservative, Niagara Falls, ON]

It's what we have to deal with here in terms of the different levels of government.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Again, I thank all of you. Thank you so much to the panellists for a very informative, very interesting history of minority-language rights in Canada over the last 40 years. I am sure we will take your recommendations under strong advisement.

Thank you very much, Your Honour.

Thank you, Mrs. Tansey. Thank you, Mr. Verrillo. Thank you, Mr. Maldoff.

We are going to recess for a second, while we change panels.

[The Chair, Liberal, Anthony Housefather]

As people are coming back, I would like to say that it is a great pleasure to welcome the Commissioner of Official Languages, Graham Fraser.

We are very pleased to also welcome Ms. Johane Tremblay.

I believe your title is general counsel, legal affairs branch, of the Office of the Commissioner of Official Languages. It is wonderful to have you here.

Commissioner, it's over to you.

[Graham Fraser, Commissioner of Official Languages, Office of the Commissioner of Official Languages]

Thank you.

I am very glad to be accompanied by Madam Tremblay because, as a non-lawyer before all of you, I have fully authorized her to say, “What the Commissioner meant to say....”

Mr. Chair, members of the committee, good morning. I am pleased to appear before your committee today to present my position on establishing a new Court Challenges Program. In short, I applaud the government's decision to create a new Court Challenges Program. I also recommend that the program's mandate be extended to fund cases involving court proceedings that seek to clarify and ensure respect for the language rights guaranteed under the Official Languages Act and other federal statutes.

When I was appointed to my position, nearly 10 years ago now, the Court Challenges Program had just been abolished. When I took office, many complaints, which had already been filed, we waiting for me. Following an inquiry by my office, these complaints were deemed to be well-founded.

In June 2008, legal action undertaken by the Fédération des communautés francophones et acadienne du Canada, in 2007, was settled out of court. This settlement led to the establishment of the new Language Rights Support Program in September 2009.

The investigation, which included a study of the legal impact of eliminating the Court Challenges Program, led me to at least two conclusions I believe should be brought to your attention. First, not only has the Court Challenges Program had a direct and significant impact on clarifying and advancing language rights in Canada, but it has also helped to enhance the vitality and development of our official language minority communities.

Secondly, even when those rights are clear, or when language obligations are clarified by the courts, their implementation may still fall short for various reasons, either due to government inaction, or to deficient or minimal action. In such cases, the only effective way available to communities to force governments to act is court action or threatening to undertake such action.

I think this last finding justifies expanding the scope of the new program on two fronts. On the one hand, the new program should fund not only cases that would clarify language rights and obligations, but also cases that would ensure those rights and obligations were met. On the other hand, the program should also fund cases to ensure the language rights guaranteed under the Official Languages Act, and other federal statutes, are respected.

Over the last 10 years, I have been able to fully appreciate both the work and the costs associated with court action. Indeed, in 2010, I launched a court action to clarify CBC/Radio-Canada's obligations under the Official Languages Act. One of the complainants in that case was not eligible for funding under the Language Rights Support Program and had to be represented pro bono by a lawyer.

In two other cases, in which complainants initiated the proceedings, the complainant said had it not been for my decision to act as co-appellant before the Supreme Court of Canada, they would not have been able to appeal the Federal Court of Appeal judgment. Although the Official Languages Act allows me to intervene in legal proceedings initiated by complainants, they are the ones who are primarily responsible for pursuing the litigation and submitting the necessary evidence. In many cases, this is a significant burden for people who are seeking justice in terms of their language rights.

In other words, language rights guaranteed by the Canadian Charter of Rights and Freedoms and the Official Languages Act, including the right to launch court action, are only theoretical and illusory if groups and individuals cannot access the courts to enforce them because of the cost of taking a matter before courts of first instance. During the development of the new program, the government should ensure that funding granted for court action is set at an appropriate and sufficient level to support funding not only of language rights litigation, but also of cases which allow the courts to hear from other voices and perspectives.

I also think the permanence and independence of the new program are key factors that must guide the government in choosing the program's governance, management framework, and decision-making structure. This is also the opinion of other witnesses, including FCFA, the Quebec Community Groups Network, and the Canadian Bar Association. The proposal submitted by FCFA and the QCGN about creating the program through legislation and establishing a foundation that must report annually to Parliament is particularly relevant.

The same applies to their recommendation on the appointment, by Parliament, of members of the board of directors and the committee responsible for reviewing funding requests.

Since its creation, in 1978, the Court Challenges Program has played a vital role in the advancement of equality rights guaranteed by the Constitution Act, 1867, and by the Canadian Charter of Rights and Freedoms. As the 150^th Anniversary of Confederation dawns, Canadians should be able to proudly highlight the establishment of a program that facilitates access to justice and contributes to the advancement of their constitutional and quasi-constitutional rights.

Mr. Chair, thank you. I would now be happy to answer your questions as well as those of your colleagues.

[The Chair, Liberal, Anthony Housefather]

Thank you, Mr. Commissioner. It is a great pleasure for the committee to welcome you again.

I will give the floor to Mr. Nicholson, who will start the first round of questions.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Thank you very much, Mr. Fraser, and thank you for your service to the country.

I probably should remember this, it's about several years ago with that case with CBC, but you said one of the complainants was ineligible under the language rights support program. What exactly was the problem there? Do you remember?

[Graham Fraser]

I'm afraid I don't, but it was a community group in Windsor that launched the case. They reached the point of no return in terms of their ability to finance the case. We became co-appellants. The Federal Court ruled in our favour. The Federal Court of Appeal reversed that decision on technical grounds.

Actually, today our organization is having some discussions with CBC/Radio-Canada in the hope that we can arrive at some kind of mediated solution to the problem.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Thank you for that.

That would be kind of interesting because the language rights support program sounds like it's a perfect fit in terms of what the issues were and what that program was all about. We could perhaps ask the clerks if they wouldn't mind checking into what the story was on that particular case. The case was before the courts about four years ago, if I remember, and just to get the background on that would be good.

[Graham Fraser]

Mr. Chair, we can refer you some information related to the case.

[The Chair, Liberal, Anthony Housefather]

If you could send us anything you have that would be very much appreciated. The analysts will also see what we have.

[Rob Nicholson, Conservative, Niagara Falls, ON]

One of the proposals that you made is that the new program should finance not only the litigation involving language rights but also interventions. That's kind of wide open. If we said that anybody or everybody who wants to get involved with this would be financed by the government, that could be pretty extensive.

Do you think there should be any limits on that, or what would be the decision?

[Graham Fraser]

In our experience the courts are usually fairly rigorous in deciding who can intervene and who can't. The courts have been very generous in accepting our requests to intervene before cases, but not every group that wants to intervene has their application to intervene accepted by the courts.

That's a filter that exists, and in my experience the court is pretty disciplined in deciding who they will hear from and who they won't.

[Rob Nicholson, Conservative, Niagara Falls, ON]

That's fair enough.

One of the questions that has come before this committee in many cases is with respect to the split of jurisdiction between the federal and provincial governments. I would imagine that many, maybe even most—I'm not sure—of the language issues would involve either provincial or municipal governments or organizations that do not directly come within federal jurisdiction. Is that a fair comment, or have you found that there is always a federal component to that?

[Graham Fraser]

Most of those cases are under section 23 of the charter, which covers access to minority language education rights.

That's the major area where the issue goes before the courts. The Montfort case, in terms of access to health services, was one in which my predecessor was actively involved. I'm not sure if that involved playing the role of an intervenor.

[Johane Tremblay, General Counsel, Legal Affairs Branch, Office of the Commissioner of Official Languages]

I would add, to complete your answer, that there was a case in Quebec some years ago involving the government's decision to amalgamate municipalities. There was a challenge based on section 16 of the Canadian Charter of Rights and Freedoms. This is often the section of the charter that is raised in matters involving provincial or municipal jurisdictions.

At the time, commissioner Dyane Adam intervened in that case because the case raised issues related to the interpretation of section 16 of the charter. That's an example of where, sometimes, even provincial jurisdiction issues can be brought forward and receive funding, because they're basing their request on section 16 of the charter.

[The Chair, Liberal, Anthony Housefather]

Thank you.

I appreciate you referring to that. I was one of the plaintiffs in that case. Our municipality was being forced to merge into the City of Montreal, and similarly to Montfort, we argued that the linguistics rights provision protected the English-speaking municipalities on the island of Montreal. We didn't win. I thought we were brilliant and the arguments from the commissioner were brilliant, but no.

Mr. Bittle.