Evidence of meeting #9 for Justice and Human Rights in the 42nd Parliament, 1st session. (The original version is on Parliament’s site, as are the minutes.) The winning word was cases.
A recording is available from Parliament.
Legal Counsel, As an Individual
It sounds like a lot to me. Maybe the reason for this is that they weren't just dealing with court cases. They were doing promotion, they were doing seminars, and they were doing all sorts of things. This is where I say it's not because they mismanaged; it's because the mandate wasn't what it should be. If you want to do promotion and things like that, well, fund it independently with somebody else, but don't take the amount available to implement our rights in order to do seminars and things like that.
Under the present program, the PADL, the figure I have—we're talking about language rights—is that they had $1.5 million, with $600,000 for promotion, $500,000 for mediation, and $400,000 for cases. This is what bothers me.
NDP
Murray Rankin NDP Victoria, BC
Understandably, so I'm suggesting that we need to come up with a model that has, as much as possible, zero administrative costs. I take your point.
Just to be provocative, let's recommend that we don't have an optional ADR type of program. I think I heard Mr. Maldoff say that for these rights cases we shouldn't have any mediation. Take away the colloques and all of that and give them to the universities and think tanks; that's not part of the program, which is simply litigation for court challenges. That's what the program is called.
Also, let's house it somewhere...and not at a university, with great respect, as we had the African Canadian Legal Clinic tell us that for their community that's just a no-no. Let's put it in a government agency, such as the Department of Justice, and build a fence around it, like they effectively did for the special advocates program.
I'm very concerned about administration eating up the money, and I think your figures make that point dramatically.
Legal Counsel, As an Individual
Well, the only point.... I certainly wouldn't put it in the Department of Justice. They oppose us on almost everything.
NDP
Murray Rankin NDP Victoria, BC
Well, they do in the special advocates program, too, but I believe—and I'm familiar with that program—they've taken steps that give me comfort that it's independently administered. I'm simply saying that it can be done with people of goodwill.
Lawyer, As an Individual
If I could just add one thing, though, when it comes to the language rights side of this—and I just speak to that issue—it's a structural, systemic, societal type of issue. It's not a one-off. It means building institutions and, in many instances, changing institutions, so as for the interests of government in engaging on this, if they can avoid it, they will. The pressure against this is enormous. It's a bit different from the individual cases of equality, for example, where people are coming forward who were not treated properly. This, every time you do it, has real money behind it. It's not the case but what happens as a result.
Therefore, I don't have an answer for you on the spot, but the autonomy issue has to be addressed in a very serious way, because the government's interests are too strong in that.
NDP
Murray Rankin NDP Victoria, BC
May I, Chair, ask one more small question?
This is for you, Mr. Maldoff. I was really taken by your examples, not the court cases, but the one of bad translation such that the English version becomes irrelevant, and I was also taken by the example of the health and social services where directives are provided that may or may not be illegal. That would be an administrative law problem, let's say, that has a dramatic effect on the minority communities of English speakers in the province of Quebec.
My question is this: shouldn't we extend the program to deal with section 15, the non-language rights provisions of the charter, in order to deal with administrative law problems that might have an impact on those? In other words, should we expand the mandate so that we don't have to worry anymore about whether it's grounded necessarily in a section of the charter but has an impact on those rights notwithstanding? Isn't that what your example would lead to?
Lawyer, As an Individual
I would hope to try to ground it in the Montfort case and build from some broader principle than purely administrative law. I think that case opened some interesting doors with respect to the rule of institutions in communal life and a sense of well-being.
I worried that someone might ask me the question you just asked, and I'm going to be honest about why I worry about it. The federal government is pretty much locked into its official languages policy, constitutionally and otherwise. It extends to services beyond section 133. If there is federal support for attacks on the administrative procedures of the provinces, my bet is that the average province is going to double down on making its administrative procedures bullet-proof. Or they may try to remove the underlying right under provincial jurisdiction, such that you don't even have to worry about the administrative problem anymore.
We're all struggling to get the provinces themselves to establish rights. If the minute they do it, we turn around and beat them with a baseball bat under the Court Challenges Program, it may be counterproductive. Let's get the rights, and let's get them working. There's lots of stuff to work on right now. Once we have a culture that has come to some consensus on these items, then you can start to talk about fair administrative practices and perhaps court challenges. But I'm reluctant to encourage you to go there, because I think you may put at risk the whole program.
Liberal
Iqra Khalid Liberal Mississauga—Erin Mills, ON
My thanks to the panellists for coming in and giving us this very informative discussion.
Ms. Tansey, I have a follow-up question to something one of my colleagues asked. How are the panel members chosen for the language rights program under the court challenges?
Vice-President of the Board of Directors, Court Challenges Program of Canada
It's interesting because the FCFA in their resolution says they would like to have the panel members nominated by various universities, but the ultimate decision for naming members of the language rights panel should lie with the FCFA and the QCGN.
I've been appointed by both of them. All of us on the panel have been at our posts for the last 10 years. Prior to that, we had staff. I don't want to change your question, but I wanted to respond to Mr. Bastarache. Ken Norman, our financial treasurer from the Canadian Bar Association, says our overhead was 14%, but I'm not going to argue figures. I just had to get that in. It was in my report.
They were nominated. On the language rights panel, there are three attorneys and two people from the community. I don't mind telling you their names: André Braën, Professor of Constitutional Law, Université d'Ottawa, who came to us from the Université d'Ottawa, approved by the two major language groups, the FCFA and the QCGN; André Ouellette, a criminal lawyer in Alberta, one of the first to plead criminal cases in French in Alberta, approved by the same group; Léo Robert, from Winnipeg; and Gabriel Arsenault, from Prince Edward Island.
Their names came forward. There was a selection committee in times gone by that would vet and look for candidates or appropriate people who are active and had knowledge. You have to be a member of the minority community in the province that you're coming from. I'm the minority anglo from Quebec. The other four are representative of the francophone minorities in four other parts of Canada.
Liberal
Iqra Khalid Liberal Mississauga—Erin Mills, ON
Is this a process that you would like to see in the new Court Challenges Program? Can you recommend some tweaks to that?
Vice-President of the Board of Directors, Court Challenges Program of Canada
I think it's absolutely essential that this be seen as coming from the community.
It's a little bit like a union. The power comes from the members up and can't be imposed from the top down. It is important that it addresses the needs of the minority linguistic community, for example, and, as well, the equality of minorities. I think it's essential that the process for selecting and appointing be absolutely transparent, and it can't be dictated by the universities.
We believe there should be one integrated program with two aspects: the linguistic and the equality. We felt that our board of directors and the program did an excellent job of controlling both. On our board of directors, there are three representatives from equality, three from the language side of the program, and one who is elected as chair.
Frank Verrillo Board Member, Court Challenges Program of Canada
Perhaps I could add that our membership is made up not only of language minorities but, on the equality side, of very visible minorities, cultural minorities—our native and aboriginal communities—representatives from the intellectually and physically handicapped element of our society. Even new Canadians are represented in our membership. We have people who are advocates for the poor and the marginalized.
They are part of our membership, and from them we pick our panels.
Liberal
Iqra Khalid Liberal Mississauga—Erin Mills, ON
Thank you.
This is to all the esteemed panellists here today.
Ms. Tansey, you gave us the history of the Court Challenges Program and its comings and goings with the changes of government.
Can I hear your opinion as to how we can keep this program self-sustaining and not subject to the whims of the government of the day, perhaps something along the lines of an independent governing body, etc., with a private-public funding model?
Liberal
The Chair Liberal Anthony Housefather
Given time limitations, if we're going to have all three answer, I'd prefer if everyone be very succinct .
Vice-President of the Board of Directors, Court Challenges Program of Canada
Are you directing that to me, or to—
Liberal
The Chair Liberal Anthony Housefather
She directed it to everyone, but is there anyone who wants to answer that?
Mr. Maldoff.
Lawyer, As an Individual
There have been discussions within the broader community, let us say, of some sort of foundation with some sort of an endowment, and creating an independence from government in so doing, but lean—as my good friend Michel Bastarache has said—in terms of the mandate being very clear to avoid it.
Again, I strongly urge that the linguistic and the equality be separate items. They are really different birds.
Legal Counsel, As an Individual
I would agree with that, with this one point. I don't think it should be the same administration because I think the distinctions are very important.
When you're talking about equality rights, you have to look at the context. The context is that we have human rights commissions and we have human rights tribunals. All of these institutions are important, and they deal with these issues. It doesn't mean we don't need a program like this one, but it means it's a very different kind of program. It has to be developed with regard to the context and other institutions.
Why not have one that is concentrated on that issue and adapted to that context, and have another one that is distinct and has to do with these language rights, which are rights of a very particular nature?
Liberal
Vice-President of the Board of Directors, Court Challenges Program of Canada
The equality and the language worked wonderfully together under the Court Challenges Program. The problem is that we've had two governments come in, and I think it's fair to say that the language proponent was the innocent victim of a drive-by shooting. The equality aspect was just as innocent, but it was the target, so when they torpedoed the program, there was....
I know the FCFA, Diane Côté and Sylvia Martin-Laforge, are not people who are anti-equality. In fact, their resolutions both say it, but we were able to....
Is there a way? Will the government want to open the constitution? I don't think so. With regard to an endowment to a foundation, how much of an endowment will make it sustainable? How many billions or millions of dollars do you want to put into it?
I think we need to look at it being arm's length from the government. We have to look at an organization that is accountable. I don't think it should come from the academic world, although certainly there will be aspects of that. Very strongly, I know the board of the Court Challenges feels very much that it should be....
Can it be enshrined in legislation? Well I'm a lawyer, but, as far as I know, unless you do it in the Constitution, the next government can come by and change your law. I'm not saying it should be status quo; we want to modernize. I'm saying they're both charter rights sacred.
Thank you.
Liberal
The Chair Liberal Anthony Housefather
I don't want to keep the commissioner waiting too long, but I know that Mr. Nicholson is the former justice minister, and I want to give him the flexibility to ask a question, certainly given that his government was mentioned a couple of times.
Conservative
Rob Nicholson Conservative Niagara Falls, ON
Thank you very much.
First of all, Mr. Maldoff, did you say that you applied for the Court Challenges Program or you didn't? If you did apply, did you get any funding for all those cases you mentioned earlier?
Lawyer, As an Individual
Five out of the seven cases I mentioned, I was directly involved in organizing. I think four out of those five were funded. I can't remember whether—