Official Languages Committee on June 14th, 2007

[Mauril Bélanger, Liberal, Ottawa—Vanier, ON]

Okay. It was based on that conclusion and the unwritten principles that the community I represent, Montfort Hospital, won its case, essentially. So I buy in very much to the fact that it's a breathing, living document. Reading in is part and parcel of a living, breathing constitution.

You referenced one matter in particular. You say in your notes or in that article that “Possibly the most controversial use of this”--what you call a “doctrine”--“was to read in sexual orientation as a prohibited ground of discrimination under Section 15”. Do you disagree that sexual orientation should be read in, as you say? Do you think sexual orientation should be a ground for discrimination?

[Tasha Kheiriddin]

I think that the frames of the charter do not put sexual orientation into the charter. I think that under the term “sex” it would have been possible to include sexual orientation without necessarily invoking the reading-in doctrine. Using the reading-in doctrine makes the legislature abdicate from its responsibility for passing laws that are clear in the first place or for amending them to reflect evolution of society.

[Mauril Bélanger, Liberal, Ottawa—Vanier, ON]

The legislature does not abdicate; it has the capacity, through the notwithstanding clause, to overrule any judgment of the Supreme Court. It chose not to. This is not an abdication.

[The Vice-Chair, Liberal, Pablo Rodriguez]

Mr. Bélanger, that is all the time we have right now.

[Mauril Bélanger, Liberal, Ottawa—Vanier, ON]

Unfortunately!

[The Vice-Chair, Liberal, Pablo Rodriguez]

Unfortunately.

We will come back to this side.

Mr. Chong, your turn.

[Michael Chong, Conservative, Wellington—Halton Hills, ON]

Thank you, Mr. Chairman.

My question is for Ms. Kheiriddin.

I want to make a few opening remarks before I ask my questions.

I think the first thing that we all have to keep in mind here is there's a bit of conflation of the debate about the court challenges program. Many people think it was in place to assist groups with access to the legal system; that's not the case. The whole idea of the program was, especially in its early inception in the 1970s, to clarify linguistic rights in an era when we had a lot of new pieces of legislation. We had the 1977 Charte de la langue française in Quebec; in the late 1960s we had the Official Languages Act.

With the advent of the charter we had the expansion of rights, especially minority rights. There were a lot of questions around clarification, around what constituted rights with respect to those two areas, so this program was established to clarify those rights. It wasn't established to give access to the judicial system for groups that couldn't afford it. That was not the purpose of the program. That access is provided through provincial legal aid programs.

What we're talking about here is a program that costs the government $2 million to $3 million a year. You may disagree with its cancellation or you may agree with its cancellation, but it was a $2-million- to $3-million-a-year program.

Legal Aid Ontario alone spends over $200 million a year on providing access to the justice system. Provincial legal aid programs are in excess of half a billion dollars a year. I think many people have conflated this debate by indicating that the court challenges program had the same effect and the same purpose as provincial legal aid--in other words, to provide access to the judicial system--but that's not the case; it was there to create a foundation of case law to clarify both linguistic and, subsequently, minority rights.

After three decades, one could make a reasonable argument that we do have that substantive base in case law now, and that it has substantially clarified our linguistic and minority rights. Case in point: if I'm an immigrant who's moved to Quebec, do my kids have the right to take their schooling in English? No. However, if I'm a Canadian-born citizen and I move to Quebec and I was schooled in another part of the country, do I have the right to have my kids go to school in Quebec in English? Yes. The court has clarified that. That's just one example of the clarification of rights. That's the first point I want to make.

The second point I want to make is about something that was stated in the 2003 summative evaluation of the court challenges program. It said that the main purpose of the program is to clarify “certain constitutional provisions relating to equality and language rights”, and it adds that “a group or individual that would present legal arguments calling for a restrictive application of these rights would not receive CCP funding”.

Maybe you could elaborate on that. I know you touched on it in your opening remarks, as did Mr. Benson. Maybe you could clarify your views on this.

[Tasha Kheiriddin]

This was exactly the problem with the program, and Mr. Benson also discussed it. Groups such as Kids First, other family-oriented groups, REAL Women, and the Nisga'a elders in British Columbia were specifically denied funding. They were told they were not going to get the money. In the case of the Nisga'a elders, I interviewed the lawyer involved in that case, John Weston, and he said specifically that when it became clear that they were going to challenge the treaty, they were told their funding was going to be pulled.

When you see the list of litigants who did receive funding and the motives they had behind the cases--the types of legal opinions they were advancing--that's where the problem comes in. If you're funding only one type of legal opinion to the exclusion of the other, you're going to get cases brought forward continuously to advance one particular view.

If you look at the 24 equality rights judgments between 1984 and 1993, nine of them had a party or intervenor funded by the CCP. Most of these were successful. So it may not be a lot of money but it did have an impact. If that impact is only going one way, that's a problem.

What you said earlier about the original purpose of the program is really important to keep in mind. The reason we're here is partly because of what Graham Fraser pointed out about the 2005 amendments to the Official Languages Act, and the sort of positive duty that's imposed on the government. For example, we don't have an official religion act, an official mobility rights act, or an official equality act, with these types of positive obligations to fund or create programs to advance them.

The point I'm trying to make is that if you look at the language—

[The Vice-Chair, Liberal, Pablo Rodriguez]

I have to interrupt you.

We have to move on.

Mr. Nadeau.

[Richard Nadeau, Bloc, Gatineau, QC]

Thank you, Mr. Chairman.

In fact, Mr. Fraser was quite clear that abolishing the program violated Part VII of the Official Languages Act as passed during the last Parliament. It is, nevertheless, important to stress that the government is not even complying with the law by abolishing this program.

Mr. Gauthier, you said earlier that the Mahé case, which goes back to 1990 and was launched by Franco-Albertans, had answered a number of questions and ensured that Franco-Saskatchewanians would not have to go to court, but that there were other things that were unsatisfactory or needing clarification. Could you tell us what you are referring to? Would a court challenges program help to clarify them?

[Roger Gauthier]

In 2003, the francophone school board started legal proceedings regarding the underfunding of Franco-Saskatchewanian schools. The province of Saskatchewan has just amended its funding formulas, and consequently this will significantly reduce the funding that the school board had received over the past two or three years.

With the Court Challenges Program, we had succeeded in getting the government to change its funding regulations applicable to the school board, but, following the funding reform, the province failed to take into consideration minority rights. Without realizing it, it took action that hurt our funding. In my opinion the school board should begin legal proceedings once again against the province.

Currently, we are serving approximately 20% of the students who are entitled to study in francophone schools. As we continue to seek out and bring students to our schools, we realize, for example, that schools built for 100 students now have to suddenly serve 125 or 150 students, and that the school is overcrowded. In our opinion, something needs to be done.

Often, policy and administration are not successful in resolving the problem, and legal proceedings are once again needed to find a solution. I am unable to provide you details on all the cases, but, with regard to these two particular cases involving linguistic and educational rights, we see this constantly.

[Richard Nadeau, Bloc, Gatineau, QC]

Mrs. Pilon, are there any other provinces, other regions, where a court challenges Program would be very helpful to minorities?

[Ghislaine Pilon]

Everywhere. For example, only one out of every two francophone students attends our schools, and that's because too few schools have been built. Where I live, in Mississauga, a secondary school already has 850 students and is overpopulated. We cannot build another school for an additional 800 students at the secondary school level. However, this would be very beneficial in South Mississauga.

But the students are now attending English schools, and we know full well what happens when teenagers study in English: they become anglophones; they lose their French. Yes, we need a program in order to legally challenge the fact that we cannot build schools when there are enough students to justify the need. We already have the numbers. We know that 5,000 students could be attending our schools but they are not.

Yes, it would be extremely practical and really important to continue these efforts. Parents do not have the means to invest $25,000, $30,000 or $40,000 in studies, much less the time needed. Before cases are heard by the courts, students are no longer at high school, they're in university.

[The Vice-Chair, Liberal, Pablo Rodriguez]

Thank you, Ms. Pilon.

We will conclude the second round with Ms. Savoie. I suggest we follow this up, to be fair to everyone, with a final three-minute round, after which we will conclude our deliberations. Is that acceptable?

[Denise Savoie, NDP, Victoria, BC]

Okay.

[The Vice-Chair, Liberal, Pablo Rodriguez]

Ms. Savoie.

[Denise Savoie, NDP, Victoria, BC]

Thank you. I would like to go back to Mr. Benson's comment. He said that we had to initiate a dialogue with our citizens so that we don't find ourselves in a situation where there are winners and losers. I think that everyone here would fully agree that the objective is not to create winners and losers, but to resolve problems that only this program can remedy. If we could resolve these problems by adding a constitutional forum or something else of this nature, we would all agree to implement it.

Mr. Gauthier and Ms. Pilon, recently I read that the illiteracy rate of francophone minorities was really very high, which is worrisome. Indeed, we are losing very important resources because we are not successful in reaching out to these minorities to help them be educated in their language. No doubt this illiteracy reflects past problems. I would like to hear your comments on the matter.

I would also like to know whether, in your opinion, the Court Challenges Program could help resolve this problem. I refer to the francophone minorities, but I know that other minorities are dealing with this problem.

[Roger Gauthier]

I think that you are right. Low literacy levels among francophones are directly related to the fact that they did not have access to their schools or control over them.

That being said, as I mentioned in my presentation, section 23 does have a restorative aspect to it. We must be very vigilant to ensure that governments, and sometimes with the assistance of the courts, can decide on and analyze the solutions that must be implemented in order to remedy the situation and repair the harm done in the past.

As far as I am concerned, the Court Challenges Program, in addition to clarifying situations, can help us advance jurisprudence in order to specify the types of restorative measures. We have received no apology from our governments because our rights have been violated for 50, 60 or 100 years.

We know that instruments have been provided for in Part VII of the Official Languages Act and that the government has the ability to take positive measures. We also have the right to go before the courts, but when we don't have the means to do this, this right is useless. I am not talking about legal aid, which will not necessarily give us a constitutional expert who will be able to help us defend our case effectively.

We need a program that will enable us to get really professional and effective assistance to defend our case. Having used the Court Challenges Program many times, I know it is effective. As Mr. Nadeau said, the evaluations have demonstrated this. There have been fundamental changes.

When I arrived in Saskatchewan 32 years ago, the situation was very different from the one we have now. But it is not perfect yet. In the space of 25 years, we cannot change the history of a group or minority community that has been kept quiet and crushed for a long time. We need time to get back on our feet and to get the resources that allow us to do this. I hope that politics will enable us to do this.

[The Vice-Chair, Liberal, Pablo Rodriguez]

Mr. Gauthier, I will have to interrupt you. That concludes the second round.

We'll go to the third and last round of three minutes each.

I would ask you to adapt your questions or answers accordingly, please.

Mr. D'Amours.

[Jean-Claude D'Amours, Liberal, Madawaska—Restigouche, NB]

Thank you, Mr. Chairman.

Thank you everyone. I will limit myself to three minutes. I will be quite fast and I will ask you questions requiring quick answers.

Ms. Kheiriddin, I have a few questions for you. Could you confirm to me that you were indeed appointed to the Judicial Advisory Committee for the Canadian Tax Court by the current Conservative government?

[Tasha Kheiriddin]

Yes.

[Jean-Claude D'Amours, Liberal, Madawaska—Restigouche, NB]

Could you also confirm to me, Mrs. Kheiriddin, that you were appointed by the current Conservative government to the Old Port of Montreal Corporation board of directors?

[Tasha Kheiriddin]

Yes.

[Jean-Claude D'Amours, Liberal, Madawaska—Restigouche, NB]

Mr. Benson, you stated on your website that the Centre for Cultural Renewal makes available... leading thinkers. I'm reading an excerpt.

In the short time since it began, the Centre has accomplished a great deal. We have applied both our expertise and the experience of many leading thinkers to a variety of issues in Canadian society.

Mr. Benson, are these leading thinkers members of your American board of directors? As we can see, 50% of the Centre for Cultural Renewal board of directors are... Actually, there is a Canadian and an American board.

[Iain Benson]

I don't see the relevance of any of these questions, but I'll answer them.

We have a small U.S. board and a shrinking Canadian board.