Justice Committee on April 21st, 2016

[Chris Bittle, Liberal, St. Catharines, ON]

Let the record reflect the Chair's brilliance—

[Murray Rankin, NDP, Victoria, BC]

In a losing cause.

[Chris Bittle, Liberal, St. Catharines, ON]

We'll just pat ourselves on the back here.

Thank you for your testimony today.

You spoke about the permanence and independence of a renewed Court Challenges Program. I am wondering if you could expand on that a bit, and perhaps also discuss any other recommendations or thoughts that you see should be incorporated in a renewed Court Challenges Program.

[Graham Fraser]

Well, I was struck by the comments made by both QCGN and the FCFA in terms of the creation of a foundation which would establish a kind of arm's-length distance between the governments.

I wasn't familiar with the program that Mr. Rankin referred to inside of the Department of Justice. I must say I'm very relieved at the fact that our lawyers are not justice department employees. When we are appearing in court and the justice department lawyers are on the other side, on the question of accountability, the question of who the client is, there's no question as to.... Although I'm very aware that you should never judge a lawyer by their client, it is nevertheless a simplifying factor.

One idea that just occurred to us, listening to the exchange of the previous witnesses before the committee, was the possibility that an agent of Parliament might be an office that could provide that kind of independence you're looking for. A foundation is one that's being put forward, and we certainly don't have any problems with it. There would have to be some clear accountability rules. The finances would have to be accountable to Parliament on an annual basis, as our finances are.

[Chris Bittle, Liberal, St. Catharines, ON]

In an address to the bar of Montreal on October 21, 2015, you said “...the mere possibility that parties could obtain funding to develop a test case to ensure respect for their constitutional language rights was sometimes enough to pressure governments into fulfilling their duties.”

Can you share specific examples with the committee?

[Graham Fraser]

Often those are discussions that take place behind closed doors. I wouldn't want to disclose those discussions.

Part of my role as an agent of Parliament is to warn governments of the possibility that there might be a court challenge in the wings. I myself have been upset when people have come out of meetings and reported what I've said to them, so I don't feel really comfortable doing that. There have been a number of cases, both at the provincial level and at the ministerial level, where I have conveyed my concerns and subsequent action has been taken.

In some ways, the role of the Commissioner of Official Languages is similar to the role of a diplomat. I don't have power, but if I play my role effectively, I can exercise influence. However, influence diminishes dramatically if you talk too publicly about the role you've played, so I'm going to remain discreet on that issue.

[Chris Bittle, Liberal, St. Catharines, ON]

Can I perhaps ask a question on maybe a broader level?

During the time when minority communities did not have access to public funding to assert their rights, did you notice a change in government's attitude toward respect for language rights in Canada?

[Graham Fraser]

Yes, and I think just to add to what the previous panel was saying about the introduction of the Court Challenges Program, the Court Challenges Program was introduced at the time of the Blaikie case. I suspect that it was involved in funding the Blaikie case. It was a consequence of then Prime Minister Trudeau deciding that he would reject the requests from the Protestant School Board of Greater Montreal to use the power of disallowance to strike that down.

Basically, what then Prime Minister Trudeau decided was that he would not use that tool, the power of disallowance, to strike down this legislation, but that he would create this program that would enable those institutions to challenge what they felt were unjust decisions by government. It was the introduction of a new tool in the context of major complaints. In fact, I think the initial request for the power of disallowance was even earlier, in 1974, with Bill 22, but through both Bill 22 and Bill 101, both in 1974 and three years later in 1977, there was a strong desire on the part of those school boards that were seeing access to those schools narrowed dramatically by those two pieces of legislation, to call upon the federal government for help and ask it to use the power of disallowance and strike down those pieces of legislation.

Then Prime Minister Trudeau, much as Prime Minister Laurier had done 80 years earlier, said he was not going to use that tool, but that he was going to create this new mechanism to equalize the forces of communities and government.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Mr. Rankin.

[Murray Rankin, NDP, Victoria, BC]

Thank you, Mr. Fraser and Maître Tremblay, for your presence here today.

I have a couple of questions. You alluded to this special advocates program that I referenced. I'm confident that my friend Mr. Nicholson will be standing up for it, since it was his creation. I don't know why I'm the one who seems to be promoting it.

I want to make really clear a point that you alluded to, which was that you were relieved that Department of Justice lawyers weren't your lawyers.

Just to be crystal clear, that was of course never what happened in the department in the special advocates program. It was just housed administratively there. Other lawyers—I was one of them—were called from across the country, and still are, to represent people who are accused of terrorism-related issues with respect to immigration matters.

My only point in raising it is that I am personally very concerned about the administrative costs of this program, particularly when we hear not of not one, not two, but three streams, and different places. I think we really need to look hard at how we can save money and husband the resources.

I simply wanted to clarify that since you alluded to it.

[Graham Fraser]

Thank you. It's not a program that I'm familiar with or that we've dealt with at all as an organization. Thank you for that clarification.

[Murray Rankin, NDP, Victoria, BC]

I'm very impressed with the program.

Chair, it might be useful if our analysts could dig into it a bit and see whether they would find that model of help to us in our work.

[The Chair, Liberal, Anthony Housefather]

We'll ask the analysts to prepare a briefing on how that works.

[Murray Rankin, NDP, Victoria, BC]

I have two questions, then, related to administration.

What about housing the languages program within the office of the official languages commissioner as a separately administered program, etc.? I think you commented on that.

You sir, are an officer of Parliament. You are not within a line department. Consequently, I would have thought that all of the independence in the world would be guaranteed by putting it within your good offices. I wonder if you could elaborate on that and if you think that idea has any merit.

[Graham Fraser]

It's certainly something that we'd be willing to explore. Let me refer it to Maître Tremblay, since it's not something that we've examined or are bringing forward as a proposal, and I'm always a little uneasy about spontaneously making policy before a committee.

Maître Tremblay.

[Johane Tremblay]

I was just thinking of perhaps some conflict-of-interest issues, because the commissioner has the power to bring cases to court when the federal institutions do not comply with the Official Languages Act. Also, we do intervene in charter cases, so it may raise some issues about the possibility of administering this program in an independent manner.

[Murray Rankin, NDP, Victoria, BC]

I think those are very fair observations. I would point out that other officers of Parliament, I'm thinking of the information and privacy commissioners at the provincial level, have a section in their act where if there's a conflict, for example someone seeks records of that body, there's an adjudicator under the statute who is brought in to do the job, and that's usually a judge or a commissioner in another jurisdiction.

While I totally agree there are those issues that may arise, I think they have been handled effectively elsewhere.

In your remarks you said, “Although the Official Languages Act allows me to intervene in legal proceeding initiated by complainants, they are the ones who are primarily responsible for pursuing the litigation and submitting the necessary evidence.”

I wonder if there might be a way for your act to be amended to allow you in circumstances where someone else is before the courts on a languages issue to take over the case.

That is an example under the Personal Information Protection and Electronic Documents Act. Section 15 allows the commissioner in certain circumstances to take over a complaint. That may be a way to save a lot of money. I'll keep making the important point that you are not government. You are separate from government. Consequently, that may be a way to advance language rights in some circumstances. I wondered if you thought that might be worthwhile.

[Graham Fraser]

I do have the power to launch cases on my own initiative. There have been other cases where we have, in effect, taken over the case, and in which we have become co-appellants. For all intents and purposes, we assumed the responsibility for providing documentation before the courts and providing the legal assistance. I think the powers we have within the act to become a co-appellant on a case meet the criteria you're looking for.

[Murray Rankin, NDP, Victoria, BC]

I was wanting to suggest that would be instead of the Court Challenges Program or something like that, but I'm suggesting that's a way we could advance minority rights more aggressively.

[Graham Fraser]

I think we've been able to do that. There are a number of cases where individuals have taken the case themselves. It was clear that without representation they would be at sea before the court process. We have intervened as, in effect, their partners and supporters through that process.

[Murray Rankin, NDP, Victoria, BC]

I want to push you a little harder in the last minute I have here.

You talk about permanence and independence being key. I think everyone here said that.

Then you say the recommendation of creating a foundation is particularly relevant.

Do you buy the idea of a separate foundation? What's your idea on how we can ensure its independence and permanence?

[Graham Fraser]

The other side of the coin of independence is responsibility. You have to ensure if there is a foundation, that foundation is appropriately managed, that its use of funding is appropriate, and there is some kind of auditing mechanism or financial reporting mechanism.

I am not an expert in public administration, so I abstain from the discussion on should there be a single administration, should there be separate administrations for all three streams, or should it be run by a foundation? I think those are essentially administration issues for which I would look to administrative experts as to the most effective way those could be run. My concerns, and some of them were expressed by Michel Bastarache, are that it be set up in such a way that the responsibilities that are given to the organization, however it is structured, do not create a situation in which their promotional activities eat into the funding for litigation, for example.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

We're going to pass to Mr. McKinnon.

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

Thank you, Commissioner.

I want to build on the thread that Mr. Rankin is following about independence. One of the suggestions that has come before us is that perhaps an independent officer or an independent body of Parliament should be created for this purpose.

We recognize that anything created by Parliament, any legislation that creates such a body, could be removed by some subsequent Parliament. I wonder whether such an approach might achieve the independence we're looking for, together with the requisite durability from government to government.

[Graham Fraser]

One of the things that has struck me, looking at the growth of agents of Parliament over the last 150 years, is that they have been created because of the perception of a crisis that needed to be dealt with by a body independent from the Parliament of the day. I see the institutions of agents of Parliament as guardians of value.

There was the creation of the Auditor General's Office shortly after Confederation, when there were a variety of financial scandals. There was the creation of Elections Canada after some of the electoral scandals during and after the First World War. The Official Languages Office was created in 1969 as a response to the recommendation of the Royal Commission on Bilingualism and Biculturalism, which was itself a response to the sometimes violent expression of Quebec nationalism. Later governments brought in offices of information, privacy, lobbying, ethics. There are some experts who think that we have gone too far, that the proliferation of offices of agents of Parliament has undermined the role of parliamentarians in holding government to account.

I certainly don't feel that's the case with my office. My advice would be to walk very carefully before immediately creating another officer or agent of Parliament. I would suggest looking at it in the context of the evolution of agents of Parliament and some of the academic literature that has raised questions about whether there are too many.

I think we all now play important roles, but I think parliamentarians should reflect seriously on whether an increase in these offices would contribute to the role of parliamentarians or undermine it. There are some academics like Donald Savoie who argue that the traditional role of parliamentarians has been somewhat undermined by the continual creation of these offices.