Official Languages Committee on June 19th, 2007

[Louise Aucoin]

No. We called the minister but we did not get a response.

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

Thank you. That's fine.

Here's my second question along the same lines: Have you had an opportunity to meet with the minister since she was appointed about a year and a half ago, Ms. Aucoin?

[Louise Aucoin]

No, we have not been able to meet with her.

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

Had you requested this, Ms. Buckley?

[Melina Buckley]

No.

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

Thank you.

Ms. Thomson?

[Tamra Thomson]

In fairness, we did have the opportunity to address our questions to the then Minister of Justice Toews before the program was abolished.

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

But not with Madame Verner. So you've not been able to meet her?

[Michel Doucet]

No.

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

Thank you.

Now let me get to the question that I really want to ask you and that follows up on Mr. Nadeau's question. It deals with comments that we heard. I think that the committee is far more advanced in its work since it met with almost 10 witnesses before meeting with you this morning. We're now at the point where we're asking ourselves the following question: Perhaps the Court Challenges Program should not be reinstated in the exact same format as we had previously.

As people with experience in the field, as well as having given a great deal of thought to this question, I'd like to hear your views on this. I agree with the fact that the program could be improved. What would you add to this program? If you don't have time to answer my question, because I only have five minutes, I really would like you to send the chairman of this committee a brief that could guide us and that we could incorporate in our report to the minister.

Ms. Aucoin, I would put the question to you first.

[Louise Aucoin]

Yes.

First of all, we would like to see a permanent program. It would then be much more difficult to abolish it a third time. For the time being, it's limited to official languages issues, to section 15. There are many areas of law that perhaps should also be included, without necessarily limiting this to section 15 and official language matters.

[Melina Buckley]

The Canadian Bar Association has long supported the idea of establishing a court challenges foundation. We did some work toward that, including getting a charitable tax status for the court challenges program so it could start to raise funds independently of the federal government funding. Because of the concerns, and because it had already been abolished once, we wanted to try to avoid that situation again, including enlarging the mandate both in the language rights area and equality rights, considering the possibility of perhaps adding mobility rights in the charter, some of the other constitutional rights that have not really been explored, and really touching on the lives of people living with minority status. I think, though, that although we would look to diversify funds, without some central substantial funding from the federal government, it's not possible. That would be the ideal situation.

I think we're all keen to have the court challenges program re-established as quickly as possible. So perhaps the best thing would be two-phased: to re-establish it as it was in September of 2006, with a commitment to moving toward long-term, stable funding for the court challenges.

[The Chair, Conservative, Steven Blaney]

Thank you, Ms. Buckley. Thank you, Ms. Folco.

Next up is Mr. Michael Chong from the Conservative Party.

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

Thank you, Mr. Chair.

Thank you for your testimony.

I just have two general comments. I don't have any questions. You were pretty clear in your presentations to us.

The first one I think is a matter of perspective. There are reasonable people who could agree or disagree on this issue about the need for a court challenges program. I think arguments can be made on either side of this issue--reasonably in favour of continuing a program like this and reasonably in favour of not continuing a program like this.

I say that for the reason that the program, as it was originally established, was to clarify an area of law that had rapidly evolved in the late sixties and early seventies, and in the late seventies with the Official Languages Act, with some of the initiatives undertaken by the provinces, so there wasn't a substantial base of case law, jurisprudence, that had been established. During those years it was an era of a lot of questions around linguistic minority rights, and the program was established. Later it was expanded to include other minority rights with the advent of the 1982 Canadian Charter of Rights and Freedoms.

I think one could reasonably argue that after three decades there has been a substantial base of case law that has been established. Is it final? Is it all-encompassing? Does it clarify everything? No. There are certainly areas of law that need to be clarified, but one could argue that there is that substantial basis of jurisprudence now. There are reasonable people on the other side of the argument who don't agree, and I don't deny them their point of view.

We've been sitting here now for weeks talking about this, for months frankly, and when you look at the big picture of access to the legal system in Canada, there are two things that jump out at me. The first is that this frankly is a minuscule program in terms of access to the legal system. I think in Ottawa here on Parliament Hill we have conflated the idea of legal aid with that of the primary intention of the court challenges program. There's no doubt that one of the secondary criteria for the program, one of the secondary purposes, was to assist those who needed access to the judicial system, but the primary purpose for the program was to fund cases that would give greater clarity to that area of jurisprudence, to case law, with respect to linguistic and other minority rights.

We're looking at a system here in which the provinces are by and large responsible--well, they are responsible--for legal aid under the administration of justice. Their programs collectively are in the hundreds of millions of dollars, and what they do at the provincial level has a profound impact on access to the legal system. If you added up their programs, they're close to half a billion dollars in terms of funding to assist people to access the court system, and we're talking about a program here of $2 million to $3 million. Sometimes I wonder if we--not speaking to the witnesses now, but through you, Mr. Chair--here on Parliament Hill sometimes have a different perspective or a lack of perspective on this with respect to where really, in the real world, people need access to the judicial system. It's often through legal aid.

The final point I make with respect to access to the legal system is that there isn't an absolute right to access to the courts. The Supreme Court has recently said that in the British Columbia Attorney General v. Christie. They've said that there's a right to counsel in certain specific cases, and possibly even varied cases, but that there's no absolute right to access to the courts, and that there's frankly not a general constitutional right for state-paid legal counsel in proceedings before courts and tribunals.

Those are just the general comments that I put in front of it. As I started, I said that there are many reasonable people on both sides of this question, and I thank the witnesses here for their presentations.

[The Chair, Conservative, Steven Blaney]

Thank you, Mr. Chong, for this comment.

We'll now go to Mr. Malo.

[Luc Malo, Bloc, Verchères—Les Patriotes, QC]

First of all, I'd simply like to know whether any of the witnesses could respond to Mr. Chong's statement.

[Louise Aucoin]

I will be brief.

I quite agree that it was a very small amount of money. If that's the reason, I think you should go ahead and bring it back.

[Melina Buckley]

It's very clear that legal aid is woefully inadequate across Canada. Some of you may know that the Canadian Bar Association is actually bringing a test case in that area. We're funding it ourselves. It would not have been funded by the program.

The reality is that legal aid is there primarily for individuals to use in dealing with their personal legal issues. What the court challenges program funded is a niche on its own, completely separate from that, of public interest cases that clarify the law. You spoke about clarifying the law as if it's something we do just for the intellectual pleasure of knowing what our Constitution means. That's not why we do this work; it's to make those rights meaningful for Canadians as an aspect of their citizenship. The two are very much connected.

Yes, we need more funding for legal aid, but we should also also reinstate the court challenges program.

[Michel Doucet]

You're right; it's minuscule--not a lot of money has been put into the court challenges program, and it would be great if more money could be put into it--but it's a giant if you look at the decisions it has generated. Ask the francophones in P.E.I., Nova Scotia, Alberta, and all the provinces in Canada, who did not have a right to education in their language, if they feel that the court challenges program is a minuscule program. They feel it's a giant. In that respect, it's worth bringing back.

[Luc Malo, Bloc, Verchères—Les Patriotes, QC]

My colleague Mr. Godin referred to the testimony of Ms. Tasha Kheiriddin who met with us last week. She seemed to be saying that there could be other solutions, other ways of adequately defending minority rights. I asked her what these other solutions were and she responded that it wasn't up to her but rather up to the government to reflect on that question and to bring forth solutions.

I'd simply like to ask you whether you see other ways of intervening in a satisfactory manner to defend and protect minority rights.

[Michel Doucet]

I explained earlier that I was involved in many files regarding the Court Challenges Program across Canada. Turning to the courts was not the first choice of these communities. They are very hesitant to do so. Their preference is to initiate a dialogue with the government, sit down and find a solution. However, it does happen, as Mr. Aucoin explained earlier, that you have no choice and you have to go before the courts. The fact that the Court Challenges Program exists does not preclude other options. Dialogue and pressure tactic are used each time with the government. It is only in the final analysis that communities decide that they have no other choice and that they turn to the courts. The effort required of a citizen who brings his government to court is huge and no one happily chooses this course of action; it is always a last resort. But it remains a very important last resort, in the final analysis.

[Melina Buckley]

The other important thing to remember is that the government twice evaluated the court challenges program to see whether it was doing its job or whether there was a better way of doing it. Both times the resounding evaluation by an independent evaluator was that it was meeting its objectives, it was doing it well, it was doing it efficiently, and it really had developed the expertise to make those kinds of funding decisions.

The program was set up because initially the government had a funding pool that it provided to official language minority groups. There are issues about conflict of interest and so on, and about who makes those decisions. The value of having this independent organization is huge. It's difficult to imagine a way of strengthening that. There have been no criticisms laid against the program that could be substantiated, so why do something different, other than making it stronger and bigger and safeguarding it from the kinds of political things that are going on right now?

[Louise Aucoin]

It's a bit sad. The two times the Court Challenges Program was abolished, we lost institutional memory, that is the experts who worked at the program as well as the whole structure. We had to start again from scratch. When you have strengths, you have to build on them and move forward. It is all very nice to try to find new solutions but when you have a solution that works well you should try to hold on to it.

[The Chair, Conservative, Steven Blaney]

Thank you, Mr. Malo.

We'll now go to Mr. Godin.

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

Thank you, Mr. Chairman.

You said that the Court Challenges Program was cancelled twice. In what year was it abolished the first time?