Official Languages Committee on June 5th, 2007

[The Chair, Conservative, Steven Blaney]

Pursuant to Standing Order 108, the Standing Committee on Official Languages is commencing its study of the Court Challenges Program.

Good morning to all committee members, witnesses and participants. Today, we have appearing before us Mr. Matte, Mr. Badiou and Ms. Tansey, from the Court Challenges Program of Canada. Also with us this morning is Mr. Gratton, from the Montfort Hospital, and Ms. Lalonde, from SOS Montfort.

[Luc Harvey, Conservative, Louis-Hébert, QC]

I would like to make a point of order before we begin the meeting.

On the weekend, the leader of the Liberal Party made a statement that I find of grave concern. He said that your behaviour was similar to that of the former chairman and that, all things considered, you did not deserve the confidence of the committee. I do not think we can overlook such a statement. I would now like to know whether my Liberal friends have confidence in our chairman or if they want to start playing petty politics once again.

[The Chair, Conservative, Steven Blaney]

If I understood correctly, your point of order deals with the legitimacy of the chairman. We might discuss that if you move a motion to challenge the legitimacy of the chairman. However, I am not sure whether this is the right time to do so.

[Gisèle Lalonde, former President of SOS Montfort, As an Individual]

You could perhaps wait until we've left, because you did tell us not to engage in politics during our appearance.

[The Chair, Conservative, Steven Blaney]

Indeed, unless a proposal to that effect is moved, we will pursue our meeting.

Mr. Nadeau, do you have a point of order?

[Richard Nadeau, Bloc, Gatineau, QC]

No, Mr. Chairman, I have a point of clarification. At the last meeting, I promised to submit both the French and English versions of the report that we tabled. At the time, we only had a French copy; we now have a copy in both official languages. I would like to give you a copy so that it becomes an official committee document, for informational purposes.

[The Chair, Conservative, Steven Blaney]

Very well; I thank you for that. I am told that you distributed a copy to members of the committee.

[Richard Nadeau, Bloc, Gatineau, QC]

I handed out copies to committee members and witnesses.

[The Chair, Conservative, Steven Blaney]

Well done. That way we will be able to read it.

Without further ado, I call on witnesses from the Court Challenges Program to make their opening remarks. You have the floor.

[Guy Matte, President, Court Challenges Program of Canada]

Thank you, Mr. Chairman. As you indicated, with me are Mr. Noël Badiou, Executive Director of the Court Challenges Program of Canada, and Ms. Kathleen Tansey, member of the board of directors.

I know that it would probably be more useful to answer your questions, if you have any, but I would first like to say a few words. For example, giving people rights without access to justice is meaningless. A charter of rights without the means to uphold those rights is a denial of justice. The Court Challenges Program of Canada has helped advance rights in this country. We believe that its cancellation will lead to a democratic deficit.

Mr. Badiou.

[Noël Badiou, Executive Director, Court Challenges Program of Canada]

If I may, I will try to briefly highlight a few points.

The Contribution Agreement signed between Canadian Heritage and the Court Challenges Program of Canada in 2004 clearly states the program's mandate, which is to clarify language and equality rights in order to get people to better understand, respect and apply those rights. By their nature and wording, the provisos in the agreement are intended to broaden those fundamental rights. The objective is to ensure that all citizens are equal under the law and have access to services in the official language of their choice. The underlying principle of that provision is one of inclusion. Challenges based on that provision are naturally intended to increase people's ability to participate. This program does not exclude anyone; rather, it gives people access to the justice system.

It would be contrary to that objective to support cases that jeopardize the rights of groups that are suppose to be protected by equality and linguistic rights. Unlike what our critics claim, this is not only an issue of diverging views on equality. The program does not fund cases that would likely undermine the quality and linguistic rights of protected groups.

When it decided to cancel the Court Challenges Program, the government said that the program was not cost-effective. We do not know what they based that affirmation on. In fact, program officials were never informed that the CCP was under review. Nobody contacted the staff and members of the board, and no one asked them for information on the CCP. The government did not base its decision on any result whatsoever.

The program was assessed on two occasions, in 1997 and 2003. Each time the Contribution Agreement expired, the CCP was subject to an in-depth evaluation carried by an independent organization, and both times, it was found to be effective and accountable. Canadian taxpayers did indeed get value for their money. Our brief includes excerpts from those evaluations.

The issue of accountability with respect to public funds was scrutinized as part of the in-depth, independent evaluation of the CCP in 2003. The evaluators confirmed that the program regularly reported its activities to Canadian Heritage and that PricewaterhouseCoopers, an independent accounting firm, audited its financial statements. Those audited financial statements are included in the CCP annual report.

With regard to the funding recipients, the program does not immediately disclose the names of those who applied for financial assistance, owing to the solicitor-client privilege. The CCP funding policy is very similar to that of legal aid programs. It is impossible to obtain information on the identity of legal aid clients, given the provisions protecting people's privacy and solicitor-client privilege.

We also have to account for the recent Supreme Court of Canada ruling in Goodis v. Ontario. The Court upheld the solicitor-client privilege and found that it was an integral part of procedural fairness.

That said, in order to ensure full accountability, the program regularly asks for authorization to disclose and make public personal information, as it does in its annual reports. The program accounts for every dollar of public funds it receives.

I have three other points I would like to raise in response to criticism and concerns.

The cancellation of the CCP will have an even greater impact on traditionally-disadvantaged groups in light of the recent Supreme Court of Canada ruling in Little Sisters, whereby an order for money to pay legal fees should only be allowed under exceptional circumstances.

As well, in the case of Attorney General of British Columbia v. Christie of May 27, the Supreme Court of Canada determined that a general right to legal aid did not apply in cases where judicial or administrative tribunals had to rule on constitutional rights. Consequently, without the CCP, historically disadvantaged people do not have true access to the courts when their fundamental rights have been violated. The CCP has paid special attention to conflicts of interest and, over the years, has assessed and revised its ethics policy in that regard. As many members of the board of directors, various committees and the staff are lawyers, they are subject to the rules of their respective bar associations.

The current policy includes very high standards to ensure that no committee member or program staff benefit directly or indirectly from the use of public funds. Furthermore, to ensure greater accountability, the program posts the names and biographical notes of the members of its board of directors, committees and staff on its website. That allows for greater transparency, given that the program wishes to be accountable for all its activities, which is ultimately beneficial for all Canadians.

In response to the suggestion that only the linguistic rights component of the CCP should be reinstated, I want to underscore the fact that Canada's official language minority communities include a number of people belonging to protected groups under section 15 of the Charter, such as people with physical and psychological disabilities, as well as aboriginals, and that depriving them of the equality rights component would put them at risk.

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

Thank you very much.

I will only speak a few minutes on the impact the Court Challenges Program has had on the rights of linguistic minorities across Canada. My work has already been done. If you have had the opportunity to read the report prepared by the Commissioner of Official Languages, you will have seen that it includes a very useful schedule, prepared by Mr. Roy, with lists the key language rights cases that were funded by the Court Challenges Program, for either the Anglophone minority in Quebec or Francophones outside Quebec, including in the provinces and territories.

I will only name the cases, such as Doucet-Boudreau, which was a case from Nova Scotia and was heard by the Supreme Court of Canada in 2003. It is a landmark case for all people living in minority situations in Canada: for Francophones, because it is a case from Nova Scotia, but also for anglophones and other minorities, given that the Supreme Court imposed a preservation right, a right to monitor the protection and implementation of decisions rendered.

The Montfort Hospital—I will repeat it, I apologize, Ms. Lalonde—is the only Francophone hospital in Ottawa. It is a teaching hospital. Ms. Lalonde will talk about the efforts made by the community to save the hospital with support and financial assistance from the Court Challenges Program.

Arsenault-Cameron v. Prince Edward Island is another major case, in that it yet again strengthens the right of Francophone minorities to have their own schools in accordance with section 23 of the Charter. That was another case that was funded by the Court Challenges Program.

R. v. Beaulac was a criminal case, but a criminal case that has impact on all minority right holders, francophone and anglophone, the right to be heard and the right of an accused to be heard, to have a fair hearing in the language of his own choice by someone, a décideur who understands and who can rule.

There are so many key cases that I would never have the time. I invite you to look at them. What will be the impact of the closing of the program? There are already 38 cases pending before various levels of appeal that are not going to be financed further. These are cases in peril. There are cases concerning anglophone education in Quebec.

There is the case of Chubbs v. Newfoundland and Labrador. That's another extraordinarily important case. If this case goes on to appeal further--and it will--there's no financing. The government said on September 25 that there would be no new financing. They could not finance cases beyond the level they were currently at before the program.

La Fédération FrancoTénoise v. Canada. This case took from 1999 to 2006 to get a decision in first instance. It's determining the rights of the francophonie and the obligations of the Government of Canada and the territories. A decision was just rendered in this case in 2006 by Hon. Judge Mary Moreau favouring the Fédération FrancoTénoise and saying yes, the government is an institution that has obligations in this regard. This case is in peril.

There are so many cases. R. v. Caron is another one from Alberta. This case has been funded up to a certain level and will fall. You might realize what it's doing to the right holders of our country, the minority language right holders, and as well, our section 15 right holders, when a program like the court challenges program is cancelled in this manner.

Merci beaucoup.

[The Chair, Conservative, Steven Blaney]

Thank you very much, Ms. Tansey.

[Guy Matte]

Excuse me, Mr. Chairman. I would like to add something.

We urge the committee to recommend the full reinstatement of the Court Challenges Program and its budget as prior to September 26, 2006. Thank you, Mr. Chairman.

[The Chair, Conservative, Steven Blaney]

Thank you.

We will now proceed with our second group of witnesses, representatives from the Montfort Hospital.

[Gisèle Lalonde]

Mr. Chairman, first of all, I would like to congratulate you on having been elected to the chair. We can now continue discussing with the government. I hope the government will listen to what we have to say about this program, which was essential to us.

Before the implementation of the Court Challenges Program, Franco-Ontarians, among others, had to struggle unrelentingly to uphold their right to use French, even in their schools. The infamous Regulation 17 was imposed in 1910, at a time when there were no court challenges, and do you know how long it took to rescind the regulation? It took over 40 years. It was only after the Second World War that we were able to have the regulation repealed.

Each time we went in front of the court, it was as a last recourse. Everything had been tried. Efforts were made to talk, discuss and debate. In the case of the Montfort Hospital, we went to Toronto some 50 times. The premier, in a scrum, said that the government had never negotiated with a hospital. The community wanted to discuss the issue, but the government did not. All language crises are really caused by the governments, whether provincial, federal or municipal, as was the case here in Ottawa.

Mr. Chairman, it is unfair to accuse us of playing politics when we are demanding our most fundamental rights. On the contrary, we want to talk to you about our most precious assets: our language, culture and everything we have to preserve, in short, our identity.

I will be brief because I would like that Michel Gratton talk to you about the law itself, which shows that it was illegal for the Prime Minister and government to cancel the program.

We are not an interest group. We belong to one of the founding peoples of this country, and if you are against the concept of founding peoples, I am sorry to hear that. We went before the Supreme Court 10 years ago in a case dealing with education. We also went before the Ontario Court of Appeal, which is a highly esteemed institution. We wanted to bring the case before the Supreme Court, but the government got cold feet.

It really pains us to see that you do not understand how much we depend on financial assistance. Do you know how much the government spends on the program? On a per capita basis, it amounts to 50¢ for Francophones, but if you include Quebec Anglophones living in a minority situation just like us, that amount decreases to approximately 30¢. Do you not think that Canadians, who know how much the government is currently spending across Canada, would be outraged to learn that you refuse to give us a meagre 30¢? That money would allow us to defend our rights against the government and its army of lawyers. This to me is hard to understand.

That is what I would like you to tell the Prime Minister. You have a significant role to play, as Francophones and members of this committee: you have to tell Mr. Harper that we urgently need the program to be reinstated. By cancelling the program, you have infringed upon our rights and taken away what is most dear to us. Mr. Chairman, we are being humiliated. Humiliating a minority is not something to do lightly. That is something that has led to many revolutions around the world. I tell you, this is something we cannot accept. Our fundamental rights are being infringed upon.

Mr. Chairman, I thank you very much for having allowed us to appear again. I hope we won't have to repeat this and that you will have news for us shortly. I would simply like to report, without engaging in politics, what Ms. Verner said last weekend. She was very nice to come meet with us, but she said, among other things, that there was still a need for indepth studies and large-scale consultations. I just met a member who told me that he went across Canada and consulted people on the Court Challenges Program.

Mr. Chairman, when a government does not want to act, as you well know, it drags its feet for years. I am not a politician, but I know full well that governments carry out small studies and strike small committees. What I'm asking you to do is to tell Mr. Harper and his government that this is a pressing issue. Some 700 delegates attended the summit here last weekend. There were leaders representing Francophones from across Canada—although there were not many Quebec representatives: imagine if Quebec had joined us! All of them were asking for the program to be reinstated. I ask you to do so as soon as possible.

I will turn the floor over to Michel.

[Michel Gratton, Communications Consultant, Montfort Hospital]

Thank you, Ms. Lalonde. As we say in English, Ms. Lalonde is always a tough act to follow.

I would like to discuss the decision to cancel the Court Challenges Program as it pertains to language decisions and what they mean, and more specifically, the Montfort decision.

The Ontario Court of Appeal saved the Montfort Hospital primarily because, had it been shut down, there would have been a greater assimilation of Ontario's francophones, which would have been against the fundamental constitutional principles pertaining to the respect and protection of minorities. Another minor reason was that Franco-Ontarians were entitled to a French-speaking hospital.

I'm going to read a short excerpt from the Montfort decision, which speaks specifically about the significance of this principle. I am quoting from paragraph 81 of the Ontario Court of Appeal Montfort decision:

The protections accorded linguistic and religious minorities are an essential feature of the original 1867 Constitution without which Confederation would not have occurred.

In other words, without the respect and protection of minorities throughout Canada, there would have been no Canada, because the signatories would never have signed the 1867 agreement. And I'm not the one who is saying this, but rather the judiciary of the Ontario Court of Appeal. They based their ruling, among other things, on Supreme Court decisions.

The Montfort decision was the first to apply the principle of protection and respect of minorities. This is the first decision of this type. The principle was set forth in the Quebec secession reference to the Supreme Court of Canada.

Mr. Matte told us that we were depriving people of access to justice. It is clear that we are denying communities access to justice because they can never collect enough money to go to court. Hence we are directly encouraging the assimilation of Francophone minorities in two ways. On the one hand, we are cutting funding and, on the other hand, we are sending the message to all Canadians that this is not an important issue. This is a message that leads to assimilation throughout the country. This is a message that governments have been sending us for more than a century. They are saying this is not important, that it is secondary, an afterthought. We are told that decisions will be translated should someone submit a request. That is the problem.

Before concluding, I would like to discuss another decision. I would like to refer to the Beaulac decision, which is extremely important for the interpretation of our language rights. Before this decision, the Supreme Court said that language rights had to be interpreted narrowly because such rights were political. The Beaulac decision changed the law in Canada in 1999. It stipulated that:

Language rights must in all cases be interpreted purposively, in a manner consistent with the preservation and development of official language communities in Canada.

The words "in all cases" were underscored by the Supreme Court of Canada. By abolishing the Court Challenges Program, it is clear that language rights are not being interpreted in a generous fashion.

Since the Mahé decision by the Supreme Court of Canada in 1990, another basic principle used by all the courts in the land to interpret language rights is redress. Why did New Brunswick become constitutionally bilingual? Why did Ontario adopt the French Services Act? What is the purpose of section 23 of the Canadian Charter of Rights and Freedoms? All of these measures are designed to halt assimilation. The courts interpret this section as being one that provides redress. What does that mean?

That means that harm was done and that the governments must make additional efforts—and the Court is very clear on this matter—to invest more in an effort to repair the damage caused, among other things, by false interpretation and historic disinformation that persisted throughout the duration of the 20^th century, namely, that minorities outside of Quebec were not protected under the Canadian Constitution of 1867. It is now clear that they are and that this protection is significant.

Mr. Chairman, I think that this issue is of concern to all Canadians. Our linguistic duality is part of who we have become, at the very least. The Commissioner of Official Languages has told us that the success of Canada depended directly on the success of our linguistic duality. I don't think that is an exaggeration, nor do I think that this is a political matter.

Thank you.

[The Chair, Conservative, Steven Blaney]

I would like to thank the witnesses who were able to convey their message in the allotted time.

We will now begin the first round of funding—

[Some hon. members]

Oh, oh!

[The Chair, Conservative, Steven Blaney]

This was a slip of the tongue, of course.

I will now give the floor to Mr. Murphy, of the Liberal Party.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

Thank you for announcing the funding.

First of all, I would like to express my support for you, Mr. Chairman. We traveled together in the Canadian West. I am very confident that you are a person of integrity. I note that you have not brought the Conservative Party accountant with you in order to run this committee today. That is a good start.

I would also like to congratulate the witnesses. I am from New Brunswick and I am clearly an Anglophone, but I am part of the Acadian community through marriage. I am fully aware of the fact that in the Greater Moncton community, we had the requisite tools in the CCP toolbox to advocate for a school. We had to fight, among others, the provincial government to ensure that new schools were built in order to prevent assimilation. I am using your words, Mr. Gratton, because these are issues that affect us as well. We are indeed grappling with the problem of assimilation.

I have a question for Ms. Tansey and another for Mr. Matte.

I apologize, but I am a lawyer. It's not my fault: I was assimilated when I was young. I see that the objectives of the program have been divided into two parts. The first part underscores the importance of linguistic rights in Canada's Constitution and the second pertains to other human rights, which are obviously very important. As a lawyer, construction rules come to mind. Would it be accurate to say that the primary objective of this program is to protect the language rights enshrined in the Constitution? Do these rights supercede the others or are they on an equal footing with them? As a lawyer, I know that government lawyers use the words that give meaning to the document. In these circumstances, I am wondering whether that is the intent of the document.

Mr. Matte is it true that the government did not consult the people managing this program before abolishing it? Is it true that the Minister, Ms. Oda, simply telephoned you to inform you that the program had come to an end?

[Kathleen Tansey]

Monsieur Murphy, may I answer in English? Okay.

The object of the program is the clarification of constitutional and charter rights and freedoms. Under both, language is extraordinarily important, obviously, and you are right that it did get the one...or it came first. I would be loath, though, to tell you, because it's a fundamental right, part of our Constitution, part of our law....

The only thing I caution you on is that you can't pick and choose your minorities. I know we're here for official languages, and I'm on the language panel. I'm the anglophone from Quebec; I'm the co-president of the panel. But it's extremely important to me that there's no division and conquering here. While I agree with your legal reading that you see a...I don't think we can negate the others, because you cannot choose your minorities. It's important to understand that the linguistic minorities—the francophonie and the anglophones of Quebec—comprise among themselves other minorities as well. It's an extremely essential thing for me that you are aware of that issue, and I thank you for it.

[Guy Matte]

Thank you, Mr. Chairman.

I would like to add to what you said, Mr. Murphy. There are two parts because the first version of the Court Challenges Program pertained exclusively to language rights. When the program was re-established, after 1982, that is, after the implementation of the Charter of Rights and Freedoms, the second part was added. The intent was not that one part would be more important than the other. The program developed this way because of historical reasons.

As for your other question, I can tell you that, indeed, there was absolutely no consultation from the government, a department, a minister or even officials regarding our program. We simply received a call, at the Court Challenges Program Office, from the minister advising us that the program would be cancelled as of September 26, 2006, and that no new cases could be funded by the program.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

How much time do I have left?

[The Chair, Conservative, Steven Blaney]

You have one minute remaining.