Official Languages Committee on June 19th, 2007

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

Do you think it will cost more than $5,000 for that team of lawyers who will be on the case?

[Michel Doucet]

In fact, I'm doing this work pro bono. I presume that's not the case for the government lawyers.

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

To make sure that people understand, pro bono does mean that you are providing your services absolutely free of charge. It's for a good cause, really, and not to get rich. So you're doing this for free. And to have given 900 children the opportunity to attend a francophone school, because they are francophone, well that's not very expensive at all. Perhaps the other side will finally understand. If you consider the reality, the minimum wage is higher than that in New Brunswick. Let's take the example of New Brunswick, because we're in the same province. It's incredible to see how obstinate the government is being over $5.55 per student in this case. In addition, there are people who have worked for free, who have volunteered their services.

Mr. Doucet, you said earlier that you don't oppose one minority against another, when talking about various minorities. There's no doubt the government is throwing people a bone, as you mentioned, even though there is no meat on it. Everyone is jumping on that bone hoping to be able to get their little share of it and in the end...

Ms. Buckley, I think you were saying that access to the courts is a right in Canada. The government has thrown people a bone, but we have to forget about rights. If you have no money, there is no meat. You can go to court: the right to go to court is the bone, and the means to do so is the meat. However, the government is not giving people the means to go before the courts.

Earlier I was listening to the comments of Conservative members of the committee who were saying that what we are doing here today, that is examining the abolition of the Court Challenges Program, was very important for them. It is all very well to say that it is important, but they haven't understood a thing. If it's so important, let them reinstate the program right here and now, and that would be the end of the discussion. We'll stop arguing about this.

When I say they haven't understood anything, I am also saying that their understanding of the situation is certainly poor. I am not a lawyer. I am a banker. I used to finance businesses and that's a bit different. They certainly cannot claim that I got rich because of the Court Challenges Program.

A few weeks ago, during the adjournment debate, I put a question to the Minister of Justice concerning the Court Challenges Program, and the Parliamentary Secretary to the Minister of Justice responded. During the four minutes allocated for his response, he used the expression "legal aid for criminal law" five times. As I said, I'm not a lawyer, but in answer to my question about the Court Challenges Program, the parliamentary secretary stated that one of his government's top priorities was the firm desire to protect families, and providing legal aid in criminal matters was one of the ways to accomplish this goal. To my knowledge, that is a long way off from the Court Challenges Program.

At the end of his response, he added the words "the new government". Let's forget about that. In fact I think that if he were to look up the definition of the word "new" in the dictionary, he would see it means "very recent". However, this government is starting to get old. I would have said instead that "the Government of Canada is determined to continue to fund legal aid in criminal matters".

Can you tell me whether minorities are being prosecuted in court over criminal matters? With regard to the Court Challenges Program, the government says that minorities shouldn't worry, because it does provide money for legal aid in criminal cases. Where is the connection between legal aid in criminal cases and the guarantee of being able to defend one's rights through the Court Challenges Program?

In the time remaining, can you tell me whether there is any connection here? You are lawyers. Is there or is there not a connection?

[The Chair, Conservative, Steven Blaney]

Mr. D'Amours, you have exceeded your time limit. Consequently, we will not be able to hear the witnesses' answers now.

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

I am sure that this matter will be raised again.

[The Chair, Conservative, Steven Blaney]

Could you tell me who will be speaking during this third round, please?

It will be Mr. Nadeau.

[Richard Nadeau, Bloc, Gatineau, QC]

Thank you, Mr. Chairman.

The comments made by my colleague from the Republic of Madawaska are very interesting and I would like to hear your thoughts on the matter.

In my opinion, in discussing the evolution of society, another aspect has yet to be covered, mainly the principle of reparation owed to minority French-language communities. We are familiar with people's thoughts on this matter. Moreover, we discussed this briefly during our last meeting with the Association des parents fransaskois. Could you answer my colleague from the Republic of Madawaska? I would also like to take this opportunity to say: long live Edmundston and the eagle flag.

Then, Mr. Doucet, could you deal with the issue of reparation, further to the learned comments Mr. D'Amours?

[Melina Buckley]

Very briefly, in response to that, the only connection between criminal legal aid or legal aid in criminal matters and the court challenges program is that they both facilitate access to justice. And if the member was saying the Government of Canada can only afford to do criminal legal aid, and that's a priority, then I guess that's the government's determination, but I don't see the relationship at all.

[Michel Doucet]

Providing legal aid for criminal cases does not do much in terms of helping build very strong schools under section 23.

As far as section 24 is concerned, we are just starting to deal with the question now, further to the Doucet-Boudreau decision. I had an opportunity to be involved in this case as well. The communities were very quiet about the redress that they could seek from the government for violating Charter provisions. Very often the communities simply requested declaratory judgments. However, the communities did realize that, at one point, declaratory judgments were inadequate in themselves because, despite the fact that the Supreme Court had made a ruling, several governments continued to disregard the court order. Consequently, these communities had to go back to the courts—I am envious of the situation that we are currently experiencing in Newfoundland—in order to request clarification. Obviously, today communities are going to start demanding clarification of section 24, which deals with reparation. With the Doucet-Boudreau decision, the parameters have been set. We will need to build on these parameters.

[Richard Nadeau, Bloc, Gatineau, QC]

This is, therefore, theoretical because there is no jurisprudence or test case to fall back on.

[Michel Doucet]

As far as language rights are concerned, this still has to be developed, setting aside the Doucet-Boudreau decision, even though we have made tremendous progress.

[Richard Nadeau, Bloc, Gatineau, QC]

Something is bothering me. If I have understood correctly, persons with disabilities were forced to turn to the Court Challenges Program in order to have access ramps installed in provincial or federal government buildings. What battles did they have to wage, with the support of the Court Challenges Program, to obtain the same services as people who are not disabled?

[Melina Buckley]

It depends on the nature of the case. Some of those cases have been brought under human rights legislation, so they were not funded by the court challenges program. But some of the major cases in that area would have been the Eldridge case, for example, which was the right to sign language interpretation in medical services, so that a woman who was giving birth could communicate with her doctor. That was one important case in that area that was funded in part by the program. Another more recent one is the VIA Rail case, which dealt with the duty to accommodate individuals in wheelchairs in the train, under the Canada Transportation Act. And that was also an important victory recently.

[The Chair, Conservative, Steven Blaney]

You have about one minute remaining, Mr. Nadeau.

[Richard Nadeau, Bloc, Gatineau, QC]

That's fine.

I have another question. Considerable mention has been made of the Charter provisions that deal with official languages and of section 15, which covers all members of society, but does not deal with official languages. In your opinion, which groups stand to benefit in this instance from the Court Challenges Program?

[Louise Aucoin]

Equality issues are dealt with in section 15 of the Canadian Charter of Rights and Freedoms. Any citizen who feels that his or her rights have been violated or that he or she has been discriminated against can invoke this provision. Generally speaking, this is usually the case with vulnerable members of society, namely women, people who belong to visible minorities or the disabled. This section really targets the vulnerable members of Canadian society.

[The Chair, Conservative, Steven Blaney]

Mr. Jacques Gourde now has the floor.

[Jacques Gourde, Conservative, Lotbinière—Chutes-de-la-Chaudière, QC]

Thank you very much, Mr. Chairman.

I would like to congratulate all of the witnesses for coming here. Since summer is upon us, this is worth mentioning.

My question is for all of the witnesses. Before beginning, I would like to quote an excerpt from the 2003 Summative Evaluation of the Court Challenges Program. It states:

The main purpose of the Program is to clarify certain constitutional provisions relating to equality and language rights.

The document refers to clarification, and one of the main criteria of the program is, and I again quote:

[...] that the Program, as currently delivered, will only support cases that protect and advanced rights covered by the Program. In other words, a group or individual that would present legal arguments calling for a restrictive application of these rights would not receive CCP funding.

The Court Challenges Program was created to clarify certain constitutional provisions regarding equality and language rights.

In your opinion, are there other ways that the government could support court challenges while clarifying certain constitutional provisions regarding language rights?

[Michel Doucet]

I'm not sure that I understood the question specifically. However, if you are referring to the promotion of legal proceedings whose objective is not necessarily to clarify or advance language rights, I believe that the federal government would find itself, should it support such cases, in a situation where it would be in violation of its own Official Languages Act, which states, in Part V, that the government must have affirmative action programs to promote the development of francophone minorities.

This is why I said earlier that, as far as the assessment of the Court Challenges Program is concerned, when we support measures designed to promote the development of francophone minorities, we are complying with the government's obligation to have positive measures in place.

[Louise Aucoin]

The excerpt that you quoted talked about restricting rights. In my opinion, that does not appear to be the government's objective. Perhaps I misunderstood, but I do believe that the important thing here is to clarify rights.

Also, when we read the jurisprudence, we can see that, increasingly, there is reference made to the importance of interpreting rights broadly and in a liberal fashion. The whole approach to interpreting rights goes against restricting rights. I don't know if I understood correctly, but if you wish to create a new program that would meet these requirements, an improved program which would not be limited to section 15 of the Charter and the Official Languages Act, but which would really clarify every aspect of the Constitution, a program that would cover all constitutional cases, that would be very interesting, and we would certainly throw our support behind such an endeavour.

[Melina Buckley]

I think what Maître Aucoin said is a very important point: that all governments in Canada have a primary responsibility to try to ensure the full promotion of constitutional rights—all of them. They can do it, obviously, without being brought to court to do so—and that's the primary way. But the only way to clarify the extent of these rights and for the legal doctrine on rights to develop is by pronouncements of the court. So I don't think there's any way to move forward on that front without a program like the court challenges program.

[The Chair, Conservative, Steven Blaney]

You have less than one minute remaining, Mr. Gourde. Do you wish to stop there? All right.

We will now turn the floor over to the representative of the New Democratic Party, Mr. Godin.

[Yvon Godin, NDP, Acadie—Bathurst, NB]

Thank you, Mr. Chairman.

Mr. Gourde asked a question in his preamble. Ms. Buckley, you referred to two evaluations, I believe.

Wouldn't it be important for this government to see your people and ask your opinion? You are the Canadian Bar Association. I believe that means something.

Ms. Aucoin, you are the President of the Fédération des associations de juristes d'expression française de Common Law inc. The government decided, on its own initiative, to eliminate a program which we know is important. Indeed, we have been hearing this message since this morning. These people have been hearing this message for months now and they will continue hearing it if the program is not reinstated.

Do you feel that by abolishing this program, the government is shirking its responsibilities or do you think that this decision is simply one of the vagaries of politics?

I don't think that's hard to answer.

[Melina Buckley]

I think you're asking for a bit more of political evaluation of the situation.

[Yvon Godin, NDP, Acadie—Bathurst, NB]

Well, do you think it is a political decision?