Official Languages Committee on June 19th, 2007

[Michel Doucet]

I will begin by saying that it would certainly be a straightforward solution. It would be very simple to say that the government should reinstate the Court Challenges Program uniquely for language rights. Maybe it was a silver bullet that was discovered yesterday, but we have to bear in mind that the decision to abolish the Court Challenges Program infringes both the Official Languages Act, as the Commissioner said, and the Charter. Perhaps one day the courts will also hand down a decision to this effect. While it may well be a silver bullet, I believe it to be neither the only solution nor the one we should choose. Once again, rights should not be compartmentalized.

I would also like to come back to the 2002 review of the Court Challenges Program that was carried out by an independent group. I am sure that all the members of this committee have read the evaluation that was done by an independent group for the Department of Canadian Heritage. It sang the praises of the program. I think that shows that the program reflects the ideals of Canadian citizenship and the aims of the Canadian Charter of Rights and Freedoms. It also serves to show that the program in its entirety should be reinstated.

[Melina Buckley]

I support Maître Doucet's comments completely. I would add, though, that it's perhaps more clear in law because of the quasi-constitutional legislation and because the constitutional language rights are more developed than the equality rights side. The positive obligation on the part of the federal government is very clear in that area, and we've heard that said already.

There's probably equally a strong argument under section 15 of the charter that there is a positive obligation on the federal government as well, but because that jurisprudence is less advanced it's not as clear. It would take another case to clarify that.

So I think that there are strong constitutional reasons and a moral obligation on the federal government to re-establish the program as a whole. Certainly the Canadian Bar Association is firmly opposed to reinstating only part of the program. It's the wrong thing to do.

[Louise Aucoin]

The FAJEF believes that the Court Challenges Program should be strengthened. I believe that we should have more than what we have had up to now.

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

To strengthen is to have more, not less!

[Louise Aucoin]

It is more, yes. I believe that we should have a program that... It shouldn't even be called a program. It should not be called a program, it should be an independent initiative, so that when a new government takes office, cannot be cancelled. We'd like to see a different structure that would become permanent. Perhaps we could have something similar to a foundation, that would become an entirely independent structure, and not just a program.

[The Chair, Conservative, Steven Blaney]

Very well. Thank you, Mrs. Aucoin.

You can continue during the next round, Mr. Godin.

Go ahead, Mrs. Boucher.

[Sylvie Boucher, Conservative, Beauport—Limoilou, QC]

Good morning everyone, thank you for meeting with us.

I am smiling this morning because of my good friend across the way. What luck! I'm talking about you, Mr. Godin.

Thank you for being here, it is very important for us. My question is for Mrs. Aucoin. When we met with people, both during our cross-Canada tour and here in committee, certain representatives of the CCP mentioned that it was created to fund legal action that would advance the equality rights and language rights guaranteed in the Constitution and in the Charter. In the documents provided, the following is noted, and I quote:

A case is only typical to the extent that it addresses or raises an issue that has not yet been brought before the courts; the case must help official language minority communities in Canada protect their language rights.

We also learned that through the CCP, it is impossible to fund challenges to existing legislation, provincial or territorial policies or practices,or cases that were already being funded by the CCP.

I have a question for you Mrs. Aucoin. Have you been directly or indirectly involved in any cases funded by the CCP? If so, how many cases were you involved in exactly? And can you explain to me in what capacity you were involved, whether as a lawyer, Crown attorney, or advisor?

[Louise Aucoin]

Or as a mother?

[Sylvie Boucher, Conservative, Beauport—Limoilou, QC]

Or as a mother.

[Louise Aucoin]

There is an aspect of the Court Challenges Program that we sometimes overlook. When we first went to live in Moncton, there was no francophone secondary school. Mr. Murphy was the mayor at that time. I was a member of a parents group. There were seven anglophone secondary schools in the Greater Moncton Region and one francophone school in Dieppe. That meant that our children were on the road before seven in the morning and did not get home until 4:30 or 5:00 p.m. I am only talking about a normal school day, one that did not include sport or other extracurricular activities.

As a parent, I was a member of a group lobbying for a French-language secondary school in Moncton. Our parents group was made up of credit union directors and other people of high-standing in the community. We lobbied the government for years; among other things, we drafted business plans for the school. There was no French-language secondary school in what was suppose to be a bilingual city in New Brunswick. We lobbied the provincial government, but it did not want to meet with us.

Things changed when we were given some money from the Court Challenges Program; we were given $5,000 to carry out an impact study to determine whether we were entitled to a school. As soon as the courts become involved, the government became interested in talking to us. We now have a French-language secondary school in Moncton.

Yes, I benefited from this program when I was the President of the Association des juristes d'expression française du Nouveau-Brunswick, but not personally. The association was involved in cases, but it did not benefit me financially in any way. I benefited from the program when I was the President of the FAJEF, but never as a lawyer.

[Sylvie Boucher, Conservative, Beauport—Limoilou, QC]

Did all the cases involve education?

[Louise Aucoin]

They were mostly education cases, but there was also the RCMP case.

[Sylvie Boucher, Conservative, Beauport—Limoilou, QC]

Perhaps the other witnesses would like to address the same question.

Have any of you been involved in cases, either directly or indirectly?

[Melina Buckley]

Yes, I was a counsel, one of the intervenors, in the VIA Rail case. That was funded by the court challenges program last year.

[Tamra Thomson]

The Canadian Bar Association has not applied for court challenges funding. We have our own program for the cases in which we intervene.

[Michel Doucet]

I have been involved in so many cases that I would be hard-pressed to give you an exact figure. I have been involved in cases in virtually all Canadian provinces.

[Sylvie Boucher, Conservative, Beauport—Limoilou, QC]

Including Quebec?

[Michel Doucet]

No, not Quebec. That is why I said “virtually all Canadian provinces”. I have discussed cases with people in Quebec, but I've never been directly involved in any Quebec cases.

[The Chair, Conservative, Steven Blaney]

You have approximately one minute and ten seconds remaining.

[Sylvie Boucher, Conservative, Beauport—Limoilou, QC]

Did you manage to win some easier cases without having to resort to the Court Challenges Program for help?

[Michel Doucet]

There is no such thing as an easy case when you are dealing with this sort of constitutional issue. Despite the best of intentions, such cases still very often end up before the Supreme Court. When we win at the court of first instance, we would be happy for that to be the end of the matter; however, what happens is that the government files an appeal and we have to defend it, and if we win again, they appeal again to the Supreme Court and, once again, we have to defend our case. These cases are never easy and require specific expertise.

[Sylvie Boucher, Conservative, Beauport—Limoilou, QC]

So you are saying that you have never won cases for francophones without having to turn to the Court Challenges Program?

[Michel Doucet]

I have been defending the rights of francophones practically since I learned to speak. Obviously, I have won cases without using the CCP, but they were less complex cases. They did not, for example, involve asking the government to set up schools and comply with legislation.

[The Chair, Conservative, Steven Blaney]

Thank you, Mrs. Boucher.

That brings us to the end of our first seven-minute round. Members will have five minutes for both questions and answers in the remaining rounds.

Next on the list is Ms. Folco, from the Liberal Party.

[Raymonde Folco, Liberal, Laval—Les Îles, QC]

Thank you, Mr. Chairman.

To follow up on the question Ms. Boucher put to you earlier, I will say that given your answer, I'm very pleased to note that the people before us today are all people who not only have given some thought to the rights of both francophones and anglophones in Quebec, but who have also worked in the field. You certainly have a great deal of field experience and that is your main strength and certainly part of our overall experience.

I'd also like to add for the record that Mr. Doucet said that the program had not really been used in Quebec. Of course, in Quebec, there is talk of the rights of the anglophone minority. However, as was pointed out to us last week, the Court Challenges Program had provided a great deal of assistance in a very important case in Quebec, that of the Canada clause, which allowed children whose parents had studied in English in Canada elsewhere than Quebec to attend an English school. So there is clearly a linkage between the rights of one group and the rights of another, since these are minorities.

I have a first question, but I would like you to answer it very quickly. I really want to follow up on Mr. Nadeau's comments. First of all, have you been in contact with the minister responsible, Ms. Verner, or with the department regarding the cancellation of the Court Challenges Program? I'd like you to answer yes or no.