Thank you very much.
I would like to echo Ms. Thomson's thank you for the invitation today.
The Canadian Bar Association is eager to add its voice to the growing and unrelenting chorus of dismay about the cancellation of funding for the court challenges program. We feel very strongly that we need to be loud, because the effect of this elimination is to silence vulnerable groups in the one forum where they actually have an equal voice, and that is in the courts. We're very pleased to have this opportunity today to add our voice to this concern.
I am going to speak a bit more generally than my colleagues have about the role of the program, because that's the Canadian Bar Association's position on it. Obviously we do not represent official language communities, but we are very much in support of the work that has been done by them through the program.
I'd like to talk a bit about why we need the court challenges program, what role it plays in Canada, and why all Canadians should be concerned about the elimination of funding to it.
As Ms. Thomson said, the CBA's primary concern is with access to justice. Our courts have been very clear in connecting access to justice with access to the courts and the rule of law in Canadian constitutional jurisprudence. In order for law to be truly effective and constitutional rights to be truly meaningful within Canada, people, individuals, and groups need to have access to the courts to determine the extent and meaning of their rights.
The Constitution establishes important rights, including the ones that were covered by the court challenges program, the rights of official language minority groups to education and government services in the language of their choice or their primary language, as well as the right of everyone in Canada to equality before and under the law. As I said, these rights are meaningless unless there's an avenue to enforcement.
Canadian courts have long recognized that it would be “practically perverse”--and that's actually the language from one of the Supreme Court decisions--to expect governments to simultaneously enforce and challenge their own legislation or to simultaneously carry out programs and policies and also to be challenging them in the courts. As a result, our justice system has recognized and accommodated public interest litigation to fill this void, realizing it's not a role that the government can play. The court challenges program has played an incredibly important role in facilitating this type of litigation in its mandated areas.
As a quick aside on a related point, the Canadian Bar Association finds no comfort in governments promising to act constitutionally. Of course all governments believe they are acting in conformity with the Constitution, and the primary responsibility is on governments to do so. It is very rare in Canada that there has actually been a situation of bad faith where the government has knowingly or deliberately violated the Constitution.
It's a question of knowing the extent of constitutional rights. It's really only through a case that we can weigh, test, and balance these rights. There is really no alternative to doing that through litigation. It's by applying these evolving constitutional norms that evolve over time to specific fact situations that we in fact learn what these rights mean. I think the experience in the language rights area has been very clear in the value of that.
Without a proactive means through the court challenges program to assist individuals and groups, these constitutional rights and the control over how they're applied and interpreted would be available only to people with a lot of money, businesses, and so on. That is simply not acceptable within Canada today.
I'd also like to underscore that the amounts funded by the court challenges program are a fraction of what it actually costs to bring a constitutional test case forward. Individuals and groups raise money to help fund these cases. Lawyers often carry out the work at a reduced rate, and in some cases quite a bit of the service is for free. Even though the court challenges program only contributes a percentage of the cost of an actual case, it's an incredibly important amount. Without that, without knowing that there's at least that potential funding available for a case, most of these cases would not get off the ground.
The Government of Canada has repeatedly made representations to various United Nations committees saying that it's proud to fund the court challenges program because it helps it to fulfill its responsibilities under international human rights legislation and meet its responsibility for equal access to the courts and effective remedies under the Constitution and international human rights treaties.
It's quite interesting that outside of Canada this is something that the government has been very proud to talk about. In fact, the United Nations committees have really commended Canada for this important initiative.
The court challenges program, as my colleagues have already said, has been really spectacularly successful, especially in the language rights area, but there's still quite a bit more work to do. I think often in human rights and language rights parlance we talk about generations of rights. So even though we've achieved a certain amount, especially in the language rights area, there are new areas that have yet to be touched. Some of the provisions in the charter, for example, have barely been considered by the courts to date. Other ones, for example the education and the educational programs, although those areas have been developed a little bit more than some of the government services, there's still a lot of work to do, especially on the concrete remedial side and the extent of government obligations.
What is the impact of this elimination of funding to the court challenges program? I think we can think about it both in the short term and in the long term. In the short term, I think that lawyers will continue to do what they can, groups will continue to try to raise money and get cases off the ground, but I really want to emphasize that there's been a profound shift in the balance of power between groups like official language minority groups or communities and the government. The government has always had the upper hand in terms of access to resources, and now they know that the groups they are fighting against have had one of their major sources of funding taken away from them. This has been a profound shift in the balance of power.
In the longer term, I think the situation is even more bleak, because I think that individuals and groups will stop using litigation. That will be one important avenue that will be blocked for them. At the same time, we have to understand that because of their minority status or the vulnerability of groups that have so far been served by the court challenges program, they have no real effective access to the political process. So, really, many of their avenues are being closed off. I think this is a real blow to Canadian constitutional democracy and is an ugly scenario for a country like Canada that prides itself on its human rights record.
The decision to cut the court challenges program has impoverished the quality of governance in Canada, and I think all Canadians are impoverished by the short-term thinking that led to the abrupt elimination of funding to the program. It's the members of disadvantaged groups and minority groups that are hit the hardest.
In closing, the CBA would like to highlight the indivisibility of the court challenges program. Rights, like people, cannot be compartmentalized. There's an important overlap and supportive role that is played by section 15 of the charter and constitutional language rights in jurisprudence. It's very important that these are developing and evolving side by side.
This is not the time to import the type of “us versus them” mentality that we see so much in high-conflict societies around the world. Canadians aspire to build a country in which equality is experienced by all, not one in which some groups gain at the expense of others. It's the Canadian way, the Canadian Bar Association would suggest, to bring others along as we advance, to rejoice over the collective benefits and solidarity that are enhanced when constitutional rights are protected and promoted.
Those are my comments this morning, and I would be very pleased to answer any questions.