Evidence of meeting #59 for Official Languages in the 39th Parliament, 1st session. (The original version is on Parliament’s site, as are the minutes.) The winning word was groups.
A recording is available from Parliament.
Liberal
The Vice-Chair Liberal Pablo Rodriguez
Good morning everyone.
Thank you for being here.
In light of the absence of our venerable chair, I have the privilege and honour of presiding over today's deliberations.
I wish to welcome members of the committee and witnesses.
We are continuing our study on the elimination of the Court Challenges Program. In the usual fashion, we will begin with short presentations made by anyone of our guests today including Mr. Benson, who joins us from France.
Can you hear us?
Liberal
The Vice-Chair Liberal Pablo Rodriguez
Very well.
We will begin with presentations and then move to the first round of seven-minute questions followed by a second round of questions. I would ask presenters to keep their respective presentations to 10 minutes each. These will be followed by a round of questions.
We can begin to my left.
We'll have a first round of seven minutes each, and then five minutes for every member.
Marcus Tabachnick President, Quebec English School Boards Association
Mr. Chair, members of the standing committee, I would like to introduce myself. I'm Marcus Tabachnick, president of the Quebec English School Boards Association. With me today is David Birnbaum, the director general of the Quebec English School Boards Association.
Our association thanks you for this opportunity to present its views in support of the reinstatement of the court challenges program of Canada. We have felt it important to add our continuing voice to those of numerous institutions, community organizations, and academic, political, and opinion leaders, who are calling for the reversal of a very ill-conceived government decision to cancel the funding of the court challenges program.
Our association appeared on this subject last December before the House of Commons committee on Canadian heritage. Our association was one of the more than 100 that lodged complaints with Canada's Commissioner of Official Languages on the failure of this government to respect its legal obligation to consult minority language communities, among others, before undertaking the drastic and damaging steps it took.
The Quebec English School Boards Association is the public voice of nine anglophone school boards that serve some 75,000 students at the primary and secondary level, as well as those enrolled in adult education and professional training throughout Quebec. Our members' who are school board trustees elected by universal suffrage, represent the only order of government that is exclusively accountable to members of a linguistic minority community living in Quebec.
It is on behalf of these voters, and particularly their children, that the Quebec English School Boards Association is here today to call for the reinstatement of the Court Challenges Program. We find it entirely reasonable for the government to heed our demand.
Our leadership is deeply committed to strengthening its future through partnerships and collaboration with francophone Quebecers through agreements and innovative projects with neighbouring French school boards, municipalities, and communities. The QESBA is proud and determined to contribute to the vitality and development of English-speaking Quebec. That pride and determination instructs us to build bridges to our majority community. It also requires that we do all that we can to safeguard our constitutional and legislative rights and freedoms as a minority in Canada.
The Government of Canada, of course, has obligations regarding the vitality and development of its linguistic minorities as well. Our association maintains and insists that the reinstatement of the court challenges program of Canada is among those obligations. It is an essential tool if the individual and collective rights and freedoms of the members of both of Canada's linguistic minority communities and the vitality and development of those communities are to be realized as enshrined in part VII of the Official Languages Act, not to mention Canada's Charter of Rights and Freedoms.
As Commissioner of Official Languages Graham Fraser noted in his preliminary report on the government's 2006 expenditure review, the court challenges program's significant contribution over the years to the advancement of language rights in this country is unquestionable. Just as certain are the ongoing evolution of language rights and the need of minority language communities for reasonable access to the judicial process to ensure the protection and promotion of their interests.
The commissioner's preliminary report clearly restates the vital role of the program to linguistic minorities and equality groups across Canada, and then goes on to validate our association's complaint and that of so many others that the cancellation of the program was not, as required, the subject of due process. Mr. Fraser's preliminary finding subsequently confirmed the negative impact that will ensue from the cancellation of the court challenges program. The elimination of financing for the program will have an even more serious impact on the respect and implementation of language rights, since, on the one hand, many legal issues have not yet been resolved, and on the other hand, the crystallization of language rights depends on positive actions by governments--governments that are not always prepared to meet this obligation.
This eminently sound reasoning was echoed in May 2006 by the very same federal government that then deemed to cancel the program only months later. I quote:
The Court Challenges Program (CCP), funded by the Government of Canada, provides funding for test cases of national significance in order to clarify the rights of official language minority communities and the equality rights of historically disadvantaged groups. An evaluation of the CCP in 2003 found that it has been successful in supporting important court cases that have a direct impact on the implementation of rights and freedoms covered by the Program.
The quote continues:
The Program has also contributed to strengthening both language and equality-seeking groups' networks. The Program has been extended to March 31, 2009.
The above deposition was made by the Government of Canada before the United Nations Committee on Economic, Social and Cultural Rights, as reported in the commissioner's preliminary report.
The QESBA particularly addresses itself to the members of the government side on this committee when it asks for some explanation, because no satisfactory one has been forthcoming in the months that have passed since the cancellation of the program for this sudden and final decision. The absence of such an explanation has inevitably led to suggestions that the cancellation was motivated by ideological intransigence, partisan considerations, or simple disdain for due process. We await to be enlightened by a more constructive or defensible answer, if such a response exists.
At times, English-speaking Quebeckers have detected an obvious trend within parliamentary circles and elsewhere, of forgetting that Canada is made up of two linguistic minority communities: anglophone and francophone. It must be acknowledged that these two communities will have a high price to pay if the decision to cancel the Court Challenges Program is not overturned.
The anglophone community and the school board network that serves it have adapted well to a Quebec that is changing. Despite this, successive Quebec governments, similar to their provincial counterparts in the rest of the country, have not always been generous nor sensitive to the needs of linguistic minority voters.
Consequently, recourse for us to the court challenges program is as pertinent as it is to francophones in the rest of Canada and to equality groups across the country.
Our current provincial minister of Canadian intergovernmental affairs, ironically, and perhaps inadvertently, made this case for us recently. He deposited a motion before Quebec's National Assembly supporting the annual report of the official languages commissioner, which dealt so prominently with the court challenges program. It read, in part, as follows, and this is our translation:
That the National Assembly reiterate the importance that the French language be defended and promoted as an official language of Canada and demand that the federal government clearly affirm its intention to follow up on the last report of the Commissioner of Official Languages and this, in the interests of the future of the French language in the rest of Canada.
Laudable sentiments, to be sure. And the motion carried unanimously.
It continued for another four paragraphs without a single mention of Quebec's own minority language community, Quebec's own founding voice of linguistic duality; that is to say, it concluded with not a word of reference to Quebec's English-speaking community. There is indeed a continued imperative for vigilance on minority language matters in Quebec, as well as in the rest of the country.
The nine member school boards of our association have the constitutional right to control and manage schools serving the English-speaking community of Quebec. School boards exercise that right, at least in part, by virtue of decisions rendered in landmark cases made possible by the court challenges program of Canada. Perhaps the most significant of those cases, the Mahé case in Alberta, would not likely have found its way to the Supreme Court without support from the court challenges program.
Key interventions from English-speaking community organizations in Quebec were funded in that case and in others directly affecting education rights. The right of students to attend minority language schools is also a question that the court challenges program was created to help answer.
In Quebec, access is limited by the charter of the French language but nevertheless protected within those limits under section 23 of the Charter of Rights and Freedoms. If individuals are to test the extent of those constitutional protections against the formidable resources of government, they must have the right to do so. The court challenges program is an essential, meaningful, and, lest anyone forget, financially reasonable way to ensure that right.
With all due respect, the number of committee hearings that have taken place and the number of reports that have been drafted are sufficient enough to merit a government promise to fully reinstate the Court Challenges Program as soon as possible.
With the greatest of respect, enough committee hearings have now been held. Enough reports have been drafted. It's time to call the question and to answer it with a government promise to renew, without delay, full funding of the court challenges program.
Thank you, Mr. Chairman.
Liberal
Tasha Kheiriddin Professor, McGill University
Thank you, Mr. Chairman.
Thank you for this opportunity to address you this morning. I am an author and lecturer at McGill University. I have written several articles on the program in question, that is the Court Challenges Program.
I will briefly explain to you why I feel the government made the right decision by cancelling this program. I will then explain why this program became obsolete, even if it happened to be necessary in the beginning. I will provide you with an historical overview of this program. I will then talk about official languages, because we have to make sure that all the issues being considered by this committee are not being grouped together too broadly. Essentially the question being raised here is that of official languages. Does the Court Challenges Program serve to protect official languages, or are there other problems with this program that warrant it being cancelled and perhaps replaced by something that would better address the concerns of this committee?
In other words, I think perhaps there is a median solution for this committee in terms of protecting minority language rights, which does not involve bringing back the entire court challenges program, which in my opinion the government had good reason to cancel. I will now explain.
In the course of writing a book, which was published a couple of years ago, I had the opportunity to interview John Crosbie. He was the minister at the time the court challenges program was enacted by the federal Progressive Conservative government of the day. I asked him why the Progressive Conservative government expanded the court challenges program beyond its initial ambit, which was language rights, the goal that Pierre Trudeau had in 1978.
To quote Mr. Crosbie,
It was political correctness. If we had discontinued the program we would have received very bad publicity. It would have led to the Liberal party and opposition parties attacking on those grounds, saying we were not interested in human rights, and the institutions like The Globe and Mail, reinforcing our image as not being “with it” on social issues. Because of that, I thought it was not worth it to quash the CCP when it was just beginning, in addition to which the Charter was new and needed to be tested to see what it really meant. But that time is long past.
I put it to you that even if there were justifications beyond political correctness for creating the court challenges program back in 1985, clearly, more than 25 years later, there really is no reason for this program to continue.
Furthermore, the court challenges program itself, when it went beyond language rights, essentially started to fund a host of groups, which had their beginnings a lot earlier, in the late 1960s and 1970s, under the aegis of then justice minister Pierre Trudeau in the late 1960s.
You saw the Secretary of State of Canada expand to fund a large number of groups that were designed to be social animation. These involved things like women's groups, native groups, tenants' groups, a whole host of groups that were seen as social actors that the government wanted to animate through funding. The funding of these interest groups helped the interest groups grow and obviously increased their presence in Canadian public life. But this was done, as I said, mostly at the behest of government funding.
When the court challenges program was created in 1978, the initial budget of the program was quite modest. In fact, it was $200,000 a year, and between 1978 and 1982 it managed to fund six cases: three in Quebec, three in Manitoba and Saskatchewan.
These were designed to protect minority language rights. There was a challenge to Quebec's Bill 101, for example. That was the goal of the program. However, the expansion of the program was instigated not so much by a sense that minority groups were being hard done by, but a sense of the groups that had been funded by the Canadian government wanting to test section 15 of the charter, and equality rights.
This had nothing to do with minority language rights. Minority language rights have been protected in Canada since the Quebec Act of 1774. We see minority language rights protected in the BNA Act, in sections 93 and 133. This constitutional protection is part of the traditional historical basis of our country, and I put to you that to put this on the same footing as funding the equality rights challenges of these groups is not at all what should be done.
The groups in themselves, when the CCP was created in 1985 to expand it to.... They got $9 million in funding over five years. That may not seem like a lot, but when you look at the effects it's had on the judicial system, it is very significant, because unfortunately the research that has been done on the funding patterns of the CCP shows that the funding went specifically to groups that had a particular ideological agenda.
My confrere here spoke about ideological agendas of this government, but I put to you that unfortunately the CCP was not immune to an ideological agenda from the other side. And what you did see was a successive funding of groups' challenges that promoted the concept of substantive equality. The reason that was done was that there was resistance to putting substantive equality into the charter at its inception.
Substantive equality is essentially like handicapping a golf game. What it means is that certain groups who claim they have fallen behind because they are not on equal footing, they are not as strong, either economically or socially, claim the government owes them a head start in terms of achieving their goals.
These goals have been achieved through the court process, as opposed to the legislative process, and substantial equality was enshrined in particular by cases likes Schachter and Andrews, which were funded specifically by the CCP through groups like LEAF and other groups like the Charter Committee on Poverty Issues, Equality for Gays and Lesbians Everywhere, EGALE, the Canadian Prisoners' Rights Network, the Canadian Committee on Refugees, a host of groups that brought their challenges forward.
But let's remember who didn't get funding from the CCP. There were a number of groups who applied for funding and were denied. I think, for example, of REAL Women. There was a challenge in British Columbia, brought by John Weston on behalf of Nisga'a elders, against the accord. That didn't receive funding. In fact, who should be testifying here today.... I'm very pleased to be doing so, but really you should be have Ted Morton, Rainer Knopff, and I understand that Ian Brodie is probably in a conflict in terms of testifying before you today. I encourage all of you to read what these people have written about the court challenges program and the inherent bias in the funding that was disbursed.
The consequence of this is that instead of levelling the playing field, the court challenges program funded one side of the argument to the exclusion of the other.
The problem is that if we want to promote equality, the government's duty is to either fund everyone, or fund no one. It is economically impossible to fund everyone: when working with a budget, it is certain that there are always choices to be made. If there is a bias in how funds are allocated, one side will automatically be better funded than the other. In fact, this is exactly what happened. We saw for ourselves that several doctrines were applied at the Supreme Court.
The reading-in doctrine is one example of that.
Some of these doctrines became obsolete in the United States, but they were adopted here because these groups promoted them.
So trying to say here that the court challenges program should be reinstated to protect minority language rights is probably beyond the ambit of this committee, and it is not the solution to your problem.
If it is found, on the basis of empirical evidence, that minority language rights need to be protected by a program like the court challenges program, then the obvious solution for this committee is to recommend that a program be set up specifically to address the obligations of the government, under subsection 41(2) of the law on official languages, which says:
Every federal institution has the duty to ensure that positive measures are taken for the implementation of the commitments under subsection (1).
This means a program that would be much smaller in scope and would not encompass all the other groups that have hopped onto the bandwagon, so to speak, where they were not originally foreseen, to take advantage of this program. Let those groups, let all groups in Canada, find their own funding for challenges under section 15 and other provisions of the charter.
My suggestion to this committee is that if you do feel that language rights are being hard done by through the elimination of all funding to language groups, a smaller version of this program specifically targeted to that goal should be the product of your deliberations.
Thank you.
Liberal
The Vice-Chair Liberal Pablo Rodriguez
Thank you, Ms. Kheiriddin.
We move on to Mr. Gauthier or Madam Pilon.
Ghislaine Pilon President, Commission nationale des parents francophones
The two of us shall be speaking.
Liberal
The Vice-Chair Liberal Pablo Rodriguez
You have a maximum of 10 minutes. I would ask that you each be concise so that we can move on to question period.
Ms. Pilon, you have the floor.
President, Commission nationale des parents francophones
Thank you for this invitation to appear before your committee.
My name is Ghislaine Pilon, I live in Mississauga, Ontario. I am the mother of two teenagers, Nicolas and Mathieu. It is because of them that I am here today.
I am the President of the Commission nationale des parents francophones. Our primary objective is to support parents associations in each province and territory in fostering the family, educational and community development of francophone families living in minority situations.
Our federations serve approximately 500 parent committees across the country, and some 350,000 parents benefit from preschool and school services.
Our organization is responsible for francophone and Acadian communities on matters relating to francophone early childhood development and presides over and coordinates the National Round Table on Francophone Early Childhood Development that brings together a dozen partners. It is an active member of the National Round Table on Education that is chaired and coordinated by the Fédération nationale des conseils scolaires francophones.
Our 20 or so national partners in education and early childhood development bring together, from across the country, 31 school boards, more than 1,250 services, institutions and organizations, including 400 preschool services that are attended by 30,000 children aged 5 years or younger, as well as 630 primary and secondary schools attended by 146,000 children aged 19 or younger.
This network of people, organizations and institutions was able to come into existence, in part, because of the Court Challenges Program. These are the results of more than 25 years of strategic measures to help francophone parents. Our members are courageous and resilient visionaries.
The saga of educational rights began shortly after the adoption of the Canadian Charter of Rights and Freedoms in 1982. In 1983, parents from Edmonton, Alberta, challenged the first instance ruling that allowed provincial authorities to refuse francophone parents a French-language school. In the 1990 Mahé decision, the Supreme Court ruled in their favour, not only on the issue of being granted a school, but on the right to manage it. In 1986, Manitoba parents demanded universal recognition of the right to manage French-speaking schools. In the Manitoba order of 1993, the Supreme Court recognized this right.
The statistics, taken from the annual reports of the Court Challenges Program, speak for themselves. Pursuant to educational rights stipulated in section 23, our members and partners have made 183 applications since 1994. These figures do not include activities conducted under the original challenges program that was created in 1981 and abolished in 1992.
Over the last 11 years, 143 applications made by parents have been approved by the program. This is more than half of the approved applications, which deal with linguistic rights. You inferred correctly: francophone parents are without a doubt the most important client of the Court Challenges Program.
The following is a breakdown of the approved projects: 83 litigations, 30 activities concerning access and promotion, 21 case preparations and 9 impact assessments. In the 11 years of challenges, 55 cases were brought before the first instance, 15 were appealed, and 13 went to the Supreme Court. The most well-known cases during this period are the Arsenault-Cameron case in 2000 concerning Prince Edward Island schools, and the Doucet-Boudreau case of 2003 concerning high schools in Nova Scotia.
The following are examples of the lasting results of these cases. Throughout the 1980s, the network of French schools was consolidated from one end of the country to the other. The network of francophone school boards was created during the 1990s. French school boards have created new schools in most provinces. For example, in Prince Edward Island, four new schools were built after the Supreme Court handed down its ruling. In Nova Scotia, six new schools were built. Generally speaking, enrolment ceased to decline and has since stabilized. The quality of French education significantly improved once minority groups took over management of infrastructure, curriculum and promotion.
In 2005, school boards and partners established an action plan called "Action Plan—section 23—completing the French-language education system in Canada" .
Francophone communities are establishing themselves and taking in hand the management of French-speaking schools. As an example, the one and only Métis school in Canada, located in Saint-Laurent, Manitoba, will finally have its own building in 2008.
For us, the courts are the last resort. Each time a complaint was lodged, it was done because there was no other alternative, and inaction would have been intolerable. Each time, there were months if not years of pressure, exchanges of documents, meetings and negotiations. We have the intestinal fortitude and the program gave us wings.
We did not invent this system which pits us as gladiators against the provinces, which—I will remind you—are signatories of the Charter. Legislators created the arena and provided us with arms such as the Court Challenges Program. Are decision-makers innocent bystanders? Each time, citizens are the ones who pay for the lack of political will. I'm referring here to most governments which have come into power since the adoption of the Charter.
Why do governments continue resisting the enforcement of our rights? It must certainly be a wise investment in terms of votes. However, ultimately, it must be said that parents have never lost a case before the courts. Governments have always sought to buy time.
What parents have lost is considerable: they've lost time, energy, money, and I'm not talking about federal money. We have also lost respect for many people, even within our own communities, and we have lost generations of children. As we speak, one out of every two francophone children is enrolled in a French school. Is this what you call linguistic duality in Canada?
However, let us try to imagine Canada without section 23 or the Court Challenges Program. What state would our communities be in without school networks and school boards? The goal of this program is to empower minorities, but the greatest gift of the program is hope. Who can live without hope?
There is a benefit value to this strenuous process of constantly going before the courts; and that is that we make sure that case law reflects changing needs and priorities. Our realities change as do our knowledge of these realities. Because these mechanisms complement one another, Canada is a place where the processes influence public policies. While the majorities can do without this system, such is not the case for minorities.
Case law can help society understand the evolution of knowledge in education. For example, recent research was conducted on brain development among children. When the Charter was first adopted, we did not know that language acquisition begins as early as six months in the womb, and levels out at one year. In 1982, we did not understand that cognitive functions reached full capacity before the age of two. The learning capacity of a child this age is much greater than mine or yours. Such knowledge is crucial for our children's future, particularly for the future of children living in a minority situation and educated in French. This is precisely why parents are calling for the broadening of section 23 to include preschool education.
Our work is not over, and we hope to continue without having to resort to legal means. Will we have the choice?
Members of Parliament, provide us with another solution and we will gladly stop resorting to the courts. In the meantime, keep the Court Challenges Program intact. This is our expectation: that each level of government in Canada, be it federal, provincial or territorial, honour its constitutional commitments with enthusiasm and dignity. We continue to hope. We are not seeking to protect the past. We are seeking to build the Canada of the future. The investment we are making is the investment with the highest return: our children. We want our children to be healthy, multilingual, pluricultural, curious, respectful, innovative, successful and resilient. Are you with us? That is the challenge we put to you today.
Thank you.
Roger Gauthier Executive Director, Association des parents fransaskois
Mr. Chairman, I have prepared my own presentation.
Liberal
The Vice-Chair Liberal Pablo Rodriguez
Do you have any complementary information? It is very time consuming to hear the both of you.
NDP
Peter Julian NDP Burnaby—New Westminster, BC
Mr. Chairman, the witnesses have things to talk about. I understand that it is just as important to ask questions, but if the statements have been prepared, it would be preferable to allow them to make their presentation.
Liberal
The Vice-Chair Liberal Pablo Rodriguez
When you were summoned to appear, were you told that you also had 10 minutes for your presentation?
Executive Director, Association des parents fransaskois
It is what I understood.
Liberal
The Vice-Chair Liberal Pablo Rodriguez
All right. Go ahead, but I would ask that you be as brief as possible.
Executive Director, Association des parents fransaskois
Mr. Chairman, ladies and gentlemen of the committee, I thank you for giving me the opportunity to come before the Official Languages Committee and talk about the Court Challenges Program. I have already had the pleasure of meeting some of you during your visit to Regina a few months ago.
I am the Executive Director of the Association des parents fransaskois. Our office is located in Saskatoon, Saskatchewan. Our association represents close to 1,500 parents of children attending the province's 12 Franco-Saskatchewanian schools, 11 junior kindergartens and 3 day care centres.
We work in close cooperation with the Francophone School Division and the Department of Learning to ensure access to quality, French-language services at the preschool and school levels. The Association des parents fransaskois, or APF, is also a member of the Commission nationale des parents francophones.
It was only after a lengthy political and legal battle that Franco-Saskatchewanian parents were granted the right to manage their schools in 1993. We have made significant progress in the past 15 years, but we still have to settle a number of issues. Progress has to be made for section 23 of the Canadian Charter of Rights and Freedoms to be fully implemented. Francophones in Saskatchewan, as well as in all other Canadian provinces and territories, have had to go to court to defend their rights, including language and school rights.
I have been living in a minority community for the past 32 years. Without wanting to disclose my age, I was 23 at the time. I am neither a jurist, lawyer nor legal expert. However, for the past 32 years, I have experienced cases where francophones in my community or francophone institutions in my province have had to use the legal system. Fortunately, most, but not all, cases were settled outside of court.
In 1985, when I was Executive Director of the Association culturelle franco-canadienne, or ACFC, I was called on to oversee Father Mercure's case before the Supreme Court of Canada, as part of a court challenge intended to recognize Saskatchewan's bilingual nature. Despite Father Mercure's passing, the Supreme Court exceptionally agreed to hear the case and ruled in his favour. That shows the great importance that the Court attaches to such constitutional matters.
I also participated in legal action before the Court of Queen's Bench of Saskatchewan as part of the Franco-Saskatchewanian School Board drive to recognize the right to education in French as the language of instruction in minority institutions. Francophone parents won their case as a result of Justice Wimmer's decision in 1988.
During my current tenure as Executive Director of the Association des parents fransaskois, parents initiated proceedings before Saskatchewan's appellate court. The 1990 decision by the Supreme Court in the Mahé case, in Alberta, spared us from having to go to the Supreme Court, because that case largely addressed the issues that we had raised before the Court. I did say " largely," not completely.
In 2002 and 2003, when I was a school trustee, the Franco-Saskatchewanian School Board had to file three notices at the Court of Queen's Bench regarding the under-funding of Franco-Saskatchewanian schools and the need to provide francophone students in Saskatoon and Moose Jaw with adequate schools. The province later decided to settle those cases out of court.
It is the Court Challenges Program that allowed us to hire legal counsel. Do we enjoy going to court to settle our constitutional problems? We do not, not at all, but that is often the last recourse available to us. How could we do otherwise when the government is unable to realize that it is denying its minority their rights?
The recognition of language rights in 1988 by the Supreme Court of Canada and the implementation of school rights were made possible thanks to funding from the Government of Canada. That was when the original Court Challenges Program was in place. Since the program was reinstated in 1994, it has helped to defend the rights of francophones on numerous occasions. The program was useful and effective. Through the funding of legal test cases, the program truly helps modernize the equality and language rights guaranteed by the Canadian Constitution.
Now, why is this program needed? Because the Government of Canada is responsible for defending the rights of its citizens, minorities, and providing them with mechanisms to access the legal system as a last recourse.
In my view, that is a fundamental right. The Court Challenges Program is one of the means to defend the people's rights through the court system, without any political or ideological interference. The program provides funding and, consequently, access to true legal council, i.e., it helps address basic rights and issues of public interest.
The Charter dates back to 1982, a mere 25 years ago, and the case law is still being shaped. In rendering their decisions, justices and jurists assist—and do not undermine the government—businesses and individuals, without taking the place of lawmakers, and interpret the rights recognized in the Canadian Charter and Constitution. Because constitutional law is so complex and crucial, it is important that citizens and legislators be able to use the court's opinions to legislate and administer without infringing upon the rights of minorities. Experience has shown how easy it is to overlook minorities when major reforms are implemented, without considering the consequences they might have on minority rights. This often occurs in the provinces. I insist that that leads to major consequences.
It is also important to recall that the language rights contained in the Charter were granted to provide redress for past failings with regard to Canadian minority language rights, some dating back to the start of the Canadian Confederation. The Charter contains redress mechanisms to right the wrongs of the past. According to the interpretation of the Supreme Court of Canada, section 23 of the Charter includes such a redress mechanism.
In order to preserve Canadian unity and uphold the rule of law, the Canadian Parliament and government are responsible for supporting Canadians living in minority situations and compelling the government bodies that have jurisdiction over education and language rights to make the necessary corrections, take the required steps to comply with the Charter and remedy the wrongs that were caused.
Obviously, the government of Canada does not and cannot interfere in provincial and territorial areas of jurisdiction. We understand that. The Court Challenges Program can, because it is independent from political influence, facilitate dispute resolution and help shape case law that will guide decision makers, both now and in the future.
Given all these reasons, we believe that the Court Challenges Program has to be reinstated.
Thank you.
Liberal
The Vice-Chair Liberal Pablo Rodriguez
Thank you, Mr. Gauthier, for your brief remarks.
Mr. Benson, are you still there?
Executive Director, Centre for Cultural Renewal
Thanks very much.
I'd like to thank the committee for inviting me to share these observations on the important subject of the court challenges program. I want to talk about principles that need to be brought to bear on any program of governmental support for constitutional development.
In my view, time and reflection have shown us that the court challenges program was effective in achieving its influence; it had advisors of the highest ability, strategists of considerable brilliance, and a successful track record. Time and reflection, however, put us in a position to examine drawbacks as well. Some of these are serious and foundational. I want to raise some of those today. Unless they're considered, in my view, we are not proceeding in the right direction with constitutional litigation in Canada today. The program must not simply be reinstated as it was; it should be fundamentally changed for principled reasons that I will comment upon now.
First of all, it's important to understand that the relationship between the courts and the legislature is often understood as a dialogue. If that's true, then it's also true that in a further sense, debates within cases themselves are part of that dialogue. There is a dialogue and a debate about the nature of the Constitution carried on within each case, and then between cases over time; society itself, and the law that is part of it, are dialogical. It changes over time, in part due to the debates, discussions, and self-understandings that are part and parcel of our common lives together.
It needs to be clearly understood that Canada is not the Charter of Rights and Freedoms and the Charter of Rights and Freedoms is not Canada. This is important to understand because there are those--in fact, quite a few--who seem to speak as if Canada will be developed, furthered, and based on the charter, which is shorthand for saying by the judiciary, or within that dialogue between legislature and the courts.
This wider perspective about the importance of society in the debate is one that's been recognized by the court challenges program itself, because it wanted to fund, and did fund, not only litigation but conferences, and even discussion between government officials and members of activist organizations on particular themes, and in recent reports suggested that it should be extended to the provinces as well. In such an environment it's important that this be done openly and fairly, and not just from one perspective.
Any method of governmental assistance for constitutional litigation needs to be aware of the problem of rights disputes in terms of society itself, and the fact that all citizens should be encouraged to be part of the dialogue that is constitutional litigation. If we assume that courts are not merely necessary, but are sufficient, for the maintenance of a constitution, we assume too much about the role of law. This is the essential point of my comments today.
For any program of constitutional litigation assistance to be just, it must be open to everyone--not just those challenging laws, but those defending them, or those arguing against a particular sort of challenge where there is no law in an area, which was the case in the same-sex marriage cases. If constitutional litigation is going to affect everyone, which it does, then those who may need assistance in relation to that litigation do not all come neatly labelled as challengers. Therefore, any program seeking to develop constitutional interpretation must do so on a neutral basis and not assist only one side of the arguments.
What is constitutional is not just what is new and challenging; it can also be what the Parliament and legislatures, federal and provincial, may have brought into place already, and the litigation history shows this. In addition, we have to realize more and more as a country that litigation is not the best strategy for a state to use as a method of nation-building or for the creation of communities of respect. There are serious drawbacks to litigation.
As Canadian philosopher Charles Taylor has noted, judicial decisions are usually winner take all. Either you win or you lose. In particular, judicial decisions about rights tend to be conceived as all-or-nothing matters. The penchant to settle things judicially, further polarized by rival special interest campaigns, effectively cuts down the possibilities of compromise.
We have been encouraging litigation as a means of nation-building and of furthering Canada. In my view, this is incorrect; we've taken a wrong tack.
While many groups have benefited from the funds they got through the court challenges program, I believe, along with many others, that there are serious problems in the way that program was set up and in the way funds were distributed. Any fair system in the future that genuinely moves towards nation-building has to be established on different principles. I'd like now to turn to a series of those.
I'll first mention what Chief Justice McLachlin said in her well-known Cooke lecture in New Zealand. She said, “Canadians have embraced their constitution as a means to achieve justice, they have not yet established a consensus on where that justice comes from and on what it’s based.”
Chief Justice Dickson, some years before, pointed out that the charter was not enacted in a vacuum and must be placed in its proper linguistic, philosophical, and historic contexts. In the Egan case a few years later, religious traditions were added to that context.
How are we to best do this task of placing the charter in the proper linguistic, philosophical, historical, and religious traditions context if we do not do it with maximal input from the people and groups who can best tell us what these are? How, indeed?
The court challenges program, by furthering just challenges, which biases it against traditional positions, and by giving funds to favoured groups, has not, in effect, rewarded those who need to be rewarded or funded in cases where many sides of issues should be properly canvassed.
In the same-sex marriage cases, for example, in which I acted for many of Canada's national religious groups, a fundamental question was never addressed anywhere, and that was whether marriage is properly a matter for the state. Constitutional rights are important, and the courts have a necessary role in defending them, particularly when the state is acting against individuals or groups. But it is a necessary role the courts have, not a sufficient one.
It was well known that hearings by the justice committee of the day were simply cancelled once the government of the time, with no caucus discussion, no discussion in the House--in short, none of the usual opportunities for analysis and discussion--simply skipped the matter of the appeal to the Supreme Court in the marriage reference.
That was not our finest hour in Canada. And in our analysis the optimal relationship between the irreconcilable views of citizens and the state with respect to same-sex marriage has suffered as a result. We have only seen the beginning of the disputes that will erupt in such areas as public education curriculum. In my view, we could have avoided much of that.
Now I'd like to turn quickly to the principles I'd like to say should be recommended in any new approach to governmental assistance for litigation.
First, any program should not operate to assist only those challenging laws, as I said earlier. Any litigation assistance program must operate, therefore, in terms of advancing the best arguments to assist the court to frame the issues before it, not to pursue a favoured outcome by one side of the argument. This was a cardinal error in the way the former program was set up.
Second, so that all citizen groups may have confidence in its fairness, any constitutional assistance program should be set up with representative fairness. Transparency and fairness apply not only to reporting requirements and accountability for any program giving out government moneys but to the question of who staffs such a program and who decides about applications.
As far as is practicable, it would seem to make sense to involve those from a variety of different groups themselves. We know from the history of litigation in this country over the last many years who these groups are. These people should be part of a board of advisors or members making decisions. This board would have full access to all materials and would make up its own report to assist the government and the public.
Currently there is a widely shared perception that the former program represented a narrow ideological band of members, leaving many groups out in the cold. Annual reports, for example, did not give a list of all the cases in which assistance was given by the program. They had only a selection of such cases. Who made up the selection? How representative was the selection reported? We don't know. That is unacceptable.
Third, once the courts have granted intervenor status to groups in a constitutional litigation, funding assistance to a certain level should flow to all sides of the litigation, subject, perhaps, only to a means test principle. This could be done on a demonstrated need basis for individuals or for charitable or not-for-profit organizations.
The elucidation by the courts of the application of the Constitution affects everyone, and it's unfair that only one side of the arguments are supported by the tax moneys of all citizens. We leave it to a judge to determine which particular bodies have an interest and valid representative status in a constitutional litigation. And it should follow, once that determination has been made, that recourse to financial assistance is possible. This avoids the chronological bias I mentioned favouring new claims against old ones, and it also gives everyone access who has an interest.
Finally, there's a need to clarify the litigation, participation, education, and advocacy in relation to charitable status. While this may be outside of the mandate of your committee, it's very important to know how many groups in Canada are threatened by the current approaches to charities in Canada.
Lastly, it is time to consider establishing a constitutional forum for stakeholders that will benefit all Canadians. The witnesses today all provided testimony on areas of their concern that could be beautifully aired in a communitarian setting before a governmentally assisted constitutional forum. This would take the pressure off a litigation framework and would ultimately present useful reports and genuine dialogue that could help the judiciary and politicians.
Thank you very much. My comments are respectfully submitted.
Liberal
The Vice-Chair Liberal Pablo Rodriguez
Thank you, Mr. Benson.
We'll start with the first round, seven minutes.
Ms. Folco.
Liberal
Raymonde Folco Liberal Laval—Les Îles, QC
Thank you, Mr. Chairman.
I would like to welcome you all here.
First, I want to make a comment to Ms. Kheiriddin. Ms. Kheiriddin, all the minority language groups, both francophone and anglophone ones, that we have met with to date—and believe me, I think that this committee has met almost all of the minority groups—have underlined in red ink the need and importance of the Court Challenges Program.
Since I came from somewhere else, I can relate. Canadians have developed a way that they do things, which is involving groups primarily affected by a program or a measure in the consultation process, in order to identify what the problems are and what the solutions may be. So, these groups, which are at the heart of the problem and which suffer the consequences, as Ms. Pilon said so well, have clearly told us their position. The only groups that we have met with to date that seem to have an opposing position, for all sorts of reasons, both yours and Mr. Benson's, are groups that do not represent minority language groups, with all due respect.
I have no questions for you, but I wanted to make this comment. The groups that are primarily impacted, which are suffering the consequences, have in fact told us just how important this program was.
If I may, I would like to address my question to the Quebec English School Boards Association. Just recently, there was a symposium here in Ottawa, sponsored by the Fédération des communautés francophones et acadienne du Canada. At this symposium, Ms. Verner, the Minister for La Francophonie and Official Languages, said that she intended to...
I will read it in English because my notes are in English.
“Canadian Heritage will launch a wide consultation with linguistic minorities from across the country.”
Then, it says that:
Ms. Verner said that she would be asking francophones about the government's overall vision on official languages and linguistic duality.
My reaction to that is this.
It's like closing the barn door after the cow and the horse have already left.
But I would really like to hear from you, Mr. Tabachnick and Mr. Birnbaum, where you stand on this, whether before the government in place actually got rid of the court challenges program, you as a minority group, a language minority group in Quebec, were consulted in any way. And I'd like to know what suggestions you have made to Madame Verner as the minister, and whether you would be willing to take part in such a consultation if and when it does occur.