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?