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.