Official Languages Committee on June 19th, 2007

[The Chair, Conservative, Steven Blaney]

Good morning everyone.

Welcome to the Standing Committee on Official Languages. We are at meeting 60 this morning.

This morning, we have the pleasure of welcoming Professor Michel Doucet, an expert in language rights with the Law Faculty of the University of Moncton. He will be followed by Ms. Louise Aucoin, President of the Fédération des associations de juristes d'expression française de Common Law Inc. Lastly, Ms. Tamra Thomson, Director of Legislation and Law Reform with the Canadian Bar Association, will give a brief presentation. She is accompanied by Ms. Melina Buckley.

Without further ado, we will begin with witness presentations. Professor Doucet, you have the floor.

[Michel Doucet, Professor , Expert in language rights, Law Faculty, University of Moncton]

Thank you, Mr. Chairman.

I wish to begin by thanking members of this committee for having invited me to talk to you about the Court Challenges Program. I have prepared a text that I will present, after which I am open to your questions.

Since its creation in 1978, the Court Challenges Program has served to clarify the significant number of legal matters relating to language rights in Canada. Despite the notorious progress made on the legal front, there remains today many outstanding issues over how language rights are applied, and there continue to be several problems relating to the effective application of these rights.

Constitutional language rights are found under sections 16 to 23 of the Canadian Charter of Rights and Freedoms, and under section 133 of the Constitutional Act, 1867, and section 23 of the Manitoba Act, 1870. Before the Charter came into force, there were only a few Supreme Court decisions dealing with the interpretation of language rights. This case law, while having established important basic principles, did not greatly contribute to the development of linguistic communities living in a minority setting. It was thus impossible to derive any real theory on language rights in Canada.

It was only with the advent of the Charter and the establishment of the CCP that stakeholders were able to bring matters before the Supreme Court which then led the bench to state major principles which led to the emergence of what we today qualify as a theory of language rights. This new approach led by the highest tribunal of the country would be clearly stipulated in the Crown vs Beaulac case in which the Court ruled in favour of an interpretation based on the purpose of language rights. Allow me to quote an excerpt from the ruling:

Language rights must in all cases be interpreted purposefully, in a manner consistent with the preservation and development of official language communities in Canada.

Francophone and Acadian communities living in a minority setting have resorted to the legal system frequently since 1981, particularly in the area of school rights, in an effort to exercise the rights they are entitled to under the Charter. Decisions handed down by the courts in all Canadian provinces and at all levels have clarified the ambit of language rights. This unprecedented development would have been unfathomable without financial assistance provided through the Court Challenges Program. The Court Challenges Program lent legitimacy to the legal action taken to recognize, affirm, confirm and apply language rights.

Without the support of the CCP, francophone communities living in a minority setting would not have had the means to have their rights recognized before the courts. This fact is made even clearer as the adverse party represented often by governments at both the federal and provincial levels has always had practically endless financial and human resources.

Overall, the scope of the CCP goes beyond merely funding litigation. The program serves as an engine of development in official language minority communities, which in some regions, are remote or even forgotten. The CCP underscores the notion of collective well-being through the preservation and development of official languages in Canada. Lastly, the program serves to foster democratic development by reminding authorities that democracy is not the exclusive domain of the majority; in a country where the rule of law and constitutional law reign supreme, access to justice ensures that the minority has the means to make sure their rights are respected by the majority.

It is highly possible that minority language education rights, recognized in section 23 of the Charter, would never have become a reality in the absence of court rulings. These court rulings would have never been handed down without the financial support of the Court Challenges Program, which allowed ordinary Canadians to launch legal action to ensure that the supreme law of the land, the Constitution of Canada, was respected, in often very difficult conditions. Today, there are minority schools, and minority school boards in each one of the provinces and territories across the country. We are greatly indebted to the CCP.

The CCP facilitates greater access to the legal system for groups and individuals whose language rights have not been recognized or have been violated. The program makes a significant contribution to the clarification of these rights. It plays an important role by furthering the understanding of constitutional provisions that relate to language rights. It has allowed for official language groups to challenge certain policies and practices that have violated their rights. The program has played a leading role in most court challenges relating to these rights since 1978.

To this day, there remains several cases that are outstanding and that in future will require court intervention. These cases are identified in the preliminary report on complaints lodged following the abolition of this program, prepared by the Commissioner of Official Languages.

The decision to eliminate the CCP was made even more surprising since in June 2002, the Department of Canadian Heritage had retained the services of a firm of consultants, Prairie Research Associates, to assist the department in carrying out a summary assessment of the CCP. Among its conclusions, the assessment held that the CCP had always met the needs as originally set out since its establishment, and that there was justification to continue with the program. In fact, this assessment led to the renewal of the CCP for the period of 2003 to 2009.

The report also concludes, and I quote:

The evaluation indicates that the CCP meets the needs that led to the Program's creation and its activities are consistent with the Department of Canadian Heritage strategic objectives, particularly those relating to citizens' engagement and promotion of official languages.

What has happened since this study and the recent decision to eliminate the Court Challenges Program? Was the affirmation that the CCP was no longer part and parcel of the aspirations of Canadians, and that today the law of the majority should prevail based on any independent study? To this day, we are still awaiting an explanation. An explanation may be forthcoming once the government provides a reply to the Official Languages Commissioner's preliminary report to be released on June 21, possibly tabled on June 22. However, I doubt that a future explanation will be more convincing than the ones provided in the past.

Before concluding and answering your questions, allow me to remind members of this committee of the commitment made by Parliament when the Official Languages Act was adopted.

This piece of legislation is a cornerstone of the federal policy on bilingualism. It is a quasi-constitutional act and is a flexible and organic instrument that is forward-looking, and serves to translate hopes into a linguistic reality. When the OLA was passed in 1988, legislators sought compliance with language obligations set out in the Charter. Lawmakers intended to promote equality of official languages and to make linguistic rights binding.

This act is well entrenched in section 16(1) of the Charter, which stipulates that French and English are the official languages of Canada, that they are equal in status and use in parliamentary and government institutions, and that Parliament must foster equality of status and use of French and English.

Through this act, Parliament is working towards promoting equality of the status and use of French, pursuant to the Charter. Given this context, this is why Part VII of the act is so important.

Under section 41 of the act, the federal government has the obligation to foster the development of francophone minority groups and anglophone minority groups in Canada, to support their development, to promote full recognition of the use of French and English in Canadian society. To meet these goals, federal institutions must take positive measures to translate this commitment into concrete action. Sections 42 and 43 of Part VII confer upon the Minister of Canadian Heritage the responsibility to initiate and encourage coordination of this commitment within federal institutions, as stipulated in section 41 of the act.

Part VII is to this day the most original element of the act adopted in 1988. Two provisions in the preamble of the act are dedicated to Part VII. Section 2 of the act, which defines the intent of the law, states that Part VII is one of the three substantive sections of the legislation.

Part VII is an extension of the rights recognized in the Charter, which stipulates that French and English are the official languages of Canada, that they are equal in status and use within parliamentary institutions. Its adoption indeed gives effect to one of the most important principles, that of striving toward the advancement and the equality of status and use of English and French in Canadian society.

Given what lawmakers have written into the Charter and to legislation, who in this room can confidently admit without hesitation that the decision to stop funding the CCP serves to “enhance the vitality and foster the development of official language communities” and that this decision enhances the “advancement of equality” of official languages? Who could possibly affirm that this decision is consistent with Part VII of the act, an act that you adopted unanimously in 2005?

Thank you, Mr. Chairman.

[The Chair, Conservative, Steven Blaney]

Thank you, Mr. Doucet.

We now hand the floor over to Mrs. Aucoin.

[Louise Aucoin, President, Fédération des associations de juristes d'expression française de Common Law inc]

Good morning, Mr. Chairman and members of the committee.

Thank you for having invited me to talk to your committee about the Court Challenges Program, the CCP. The Fédération des associations de juristes d'expression française de Common Law inc. brings together seven associations of French-speaking legal scholars that collectively represent 1,200 jurists. The FAJEF works to promote and defend the language rights of francophone minorities in Canada's legal sector. The federation is also a member of the FCFA, the Fédération des communautés francophones et acadienne du Canada.

Our association would first like to point out that the CCP played a pivotal and significant role in fostering the development of francophone minorities, and full recognition and promotion of the use of French in Canadian society. In fact, legal bilingualism has made great strides because of court challenges that were supported through the CCP, such as in the Beaulac and Donnie Doucet cases.

By eliminating funding to the CCP, there is risk of stagnation, at best, or regression in language rights, at worse. This does not bode very well at all, in terms of compliance with Part VII of the Official Languages Act of Canada. as my colleague, Mr. Doucet, mentioned.

In our case, in particular, we are concerned with the entire issue of access to justice in French. The association is greatly concerned over the impact that funding elimination will have on francophone and Acadian communities' ability to defend their constitutional rights. We hear about francophone groups or individuals who do not have the resources to defend their language rights before the courts. Their situation is not complicated: no funding means no access, no defence of language rights, and to a great extent, no advancement of language rights.

In fact, the FAJEF has already fallen victim to this situation. At present, we are unable to intervene in cases to the extent that we were able to in past cases brought before the Supreme Court of Canada.

It should be mentioned that it is because of the CCP that francophone and Acadian communities now have services and institutions such as schools located in their communities. Eliminating the CCP is also detrimental to Canadian citizenship, and in particular for francophone minorities in Canada. Why? Because a francophone who chooses to live in a province where he will be in the minority may be forced to pay out of pocket to have his l constitutional language rights respected. As you are fully aware, this is a very expensive undertaking, one that can cost hundreds of thousands of dollars. If a minority francophone has language rights, but has no assurances that they will be respected, what does this mean?

By abolishing funding to the CCP, the message being sent to francophone minorities is the following: it's your language, it's your problem, protecting language rights of francophones is not an issue of public interest and does not deserve to be financially supported by the federal government. We believe this is very serious. If eliminating funding to the CCP is based on the argument that some groups or individuals do not receive funding, our federation does not see any problem in broadening the mandate of the CCP, with the caveat that the poor and linguistic minorities must not be excluded. In fact, we believe that debating ideas before the courts is healthy. It is not by eliminating access to justice for the less fortunate or for linguistic minorities that a debate of this nature will take place.

If eliminating funding for the CCP is based on the principle that the federal government should not help fund challenges launched against it, it follows that the tax system should be reformed. For example, a media outlet can currently claim business expenses to reduce taxes paid should it be involved in a constitutional challenge against the federal government over freedom of expression, section 2 of the Charter. Given the nature and evolution of law, the FAJEF firmly believes that a program similar to the Court Challenges Program, or at least one equivalent to it, must be an important component of our system.

That concludes my remarks. I'll be happy to answer your questions now.

[The Chair, Conservative, Steven Blaney]

Thank you, Mrs. Aucoin.

We will continue with the Canadian Bar Association. Mr. Clerk, a document has been distributed. I would point out to the witnesses that the document you have submitted will be circulated to parliamentarians.

[Tamra Thomson, Director, Legislation and Law Reform, Canadian Bar Association]

Thank you, Mr. Chairman, honourable members.

The Canadian Bar Association is pleased to have again an opportunity to speak in favour of the court challenges program.

The CBA is a national organization that represents over 37,000 jurists across Canada. We bring a rule of law perspective to our objectives of improving the law and improving the administration of justice. We believe that the elimination of the court challenges program will have a serious impact on the rule of law and the administration of justice in Canada.

You have before you two letters that we have written in the past few months, one to the Prime Minister and responsible ministers for the program, and another to your colleagues on the Canadian heritage committee. These outline our concerns about the program, and I will ask Ms. Buckley to elaborate on those.

[Melina Buckley, Representative, Canadian Bar Association]

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.

[The Chair, Conservative, Steven Blaney]

Thank you, Madam Buckley.

We will now proceed with the first round. It's a seven-minute round per committee member.

We'll start right away with Mr. Brian Murphy.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

Thank you, Mr. Chairman. Firstly, I wish to thank witnesses for their testimony.

Starting off with the Canadian Bar Association, I couldn't be more in agreement with your presentation, so much so that I'm not going to ask you any questions about it. I will pass on to CBA New Brunswick president Maître René Basque your fine job here. Thank you for the expressions such as “generations of rights” and “rights cannot be compartmentalized”.

What we're going to face here, if you want to take it back to the CBA, are some red herring arguments that really began at your conference in St. John's, Newfoundland, last summer, when Mr. Toews, then justice minister, made the argument that governments should not fund cases they don't know anything about as adversaries.

What we've learned in our little research here, through this committee, is that the vast majority of cases are not against the federal government; they're against municipal governments—I have some experience in that regard—provincial governments, and other boards, associations. So that's a red herring. You'll hear, probably today as well, that we should be concerned with other minorities, other minority language needs, and that's a fair comment. But this is the official languages issue, and this is what we're here to discuss.

Thank you for your comments. I have two questions for Mr. Doucet and for Mrs. Aucoin.

It is important to understand that entrenching linguistic rights in section 24 of the Charter does not spell the end of case law in this area. On the other hand, it has been said that the issue of language rights has been resolved. Is this the case?

Secondly, one argument used against the Court Challenges Program is that people living in Dieppe, New Brunswick, for instance, which now happens to be the wealthiest community in the province, have the means to defend their rights. They are able to pay lawyers to defend their rights. Do you agree with this argument, Mr. Doucet?

Mrs. Aucoin, how does abolishing the Court Challenges Program affect Acadian society?

[Michel Doucet]

Thank you, Mr. Murphy. The comments singled out my hometown, Dieppe, and I understand why.

With regard to whether these rights are now clear, I agree with what Ms. Buckley said. There are generations of rights. For example, thanks to the many Supreme Court decisions on education in the minority language that have been handed down, some of the section 23 rights are now settled. However, there are still some outstanding issues concerning section 23. For example, few, if any, Canadian provinces have settled the issue of preschool education in minority language communities. Young French-speaking children do not necessarily enjoy the best conditions, that is to say, they are not always able to develop, or indeed rediscover, their mother tongue at preschool. These are questions that must be addressed. There is a lot of talk about school management and the power balance between the minister and the school boards. These questions remain outstanding.

Very few issues relating to sections 16, 17, 18, 19 and 20 of the Charter have been brought before the courts. I understand what Mr. Murphy was saying. When he was the mayor of Moncton, I was the lawyer who took the municipality to court. The case resulted in language obligations being introduced for New Brunswick municipalities. Mr. Murphy and I also discussed these issues at that time. This important decision allowed us to clarify rights and publicly debate a new generation of rights. The Constitution is an ever-developing, living organism and, in order to help it evolve, it is important to have access to the courts.

You asked whether francophone communities had the means to take matters to court. In some instances, a community fund-raiser might be the solution; however, you have to bear in mind that these are matters of public interest. An English-speaking person living in Moncton does not have to wonder whether the municipality will provide him with an English version of the municipal by-laws. An English-speaking person in Saint John does not have to fight to have access to an English-language school. An English-speaking person in Halifax does not have to plead his case to have access to health care services in his language. Francophones, however, often have to go to court because they are refused these rights. Faced with this kind of a reality, why should ordinary citizens be expected to foot the exorbitant bill?

Mrs. Aucoin said that it can cost $100,000 to take a case to the Supreme Court. I was able to take a number of cases to the Supreme Court thanks to the Court Challenges Program. Had the program not existed, I do not know how we would have managed. And I am not referring to lawyers' fees here: the cost of photocopies for a case that I will be defending before the Supreme Court in the fall is over $10,000. I do not make photocopies for the fun of it. It is the Supreme Court that requires a certain number of photocopies. The files are huge.

We are challenging the government in these cases. It knows that our resources are limited, while its own are not. Its costs are covered by the Canadian taxpayer. In many cases, preliminary questions are raised, meaning that our resources are eaten up before we even get to the substantive issues. The government, as the defendant, however, has all the resources it needs. The Supreme Court asked us to retain the services of an Ottawa agent. This alone costs between $4,000 and $5,000. Members of the public who want to have their right to education in their language and in their municipality upheld are being asked to pay $150,000 in legal costs. If they have to, they will find the means to do so. However, given that the government has already recognized these rights, providing support to have them upheld before the courts is hardly asking too much.

[The Chair, Conservative, Steven Blaney]

Thank you, Mr. Doucet. That brings us to the end of the first round.

Next we have Mr. Nadeau, from the Bloc Québécois.

[Richard Nadeau, Bloc, Gatineau, QC]

Thank you, Mr. Chairman.

Good morning to all of you. We have heard testimony about this program from other witnesses on other occasions. The vast majority of them supported the program, although a few opposed it. There is something brewing on the political front and I need your expertise. I have my own idea as to what is going on, but I would like to hear your views.

The current federal government, the Conservative government, may consider reinstating the official languages component of the Court Challenges Program, but does not want to do the same to help others who use the program, such as persons with a disability, visible minorities, and so forth.

Ms. Buckley, Mrs. Aucoin, Mr. Doucet and Ms. Thomson, I would like you to talk to us about the dangers of only reinstating one component of the program and the need, if you see it as such, to reinstate, and perhaps even strengthen, the entire program. Perhaps we could begin with Mrs. Aucoin.

[Louise Aucoin]

Certainly.

While our francophone minority communities are obviously made up of francophones, some of the francophones are also women and some are living with a disability. We are a community. In no way do we support having a program that only addresses language rights. The whole community needs the Court Challenges Program. There is a very good chance that a francophone woman with a disability living in Tracadie, or elsewhere, would have more need for the Court Challenges Program than would others. We believe that it is very important to have a strengthened Court Challenges Program, even if it goes by another name.

[Melina Buckley]

I completely agree with Madame Aucoin that the program is indivisible. I think one of the strengths, and especially since the program was re-established in 1993-94, was the way in which the language rights side and the equality rights side have worked together, and that the jurisprudence has really developed in a much stronger way because the program has brought the various lawyers and groups together to discuss strategies and so on.

I was trying to say it's not the time to divide and talk about putting one group of rights ahead of the other. We're all Canadians and we all benefit from the public interest that's served through the court challenges program as a whole. I would really urge you to say very strongly that the program should be reinstated fully in the way it was in September of 2006.

[Michel Doucet]

I certainly agree with Ms. Buckley's comment that we should not compartmentalize rights. That is very important in the current context. We cannot throw a bone to minority groups just to have them fight each other for it; we cannot say that one group will get special treatment at the expense of another.

The Court Challenges Program is an essential tool for Canadian democracy. Indeed, democracy entails more than simply expressing the view of the majority: it must also allow minorities to uphold their rights, particularly in the courts. In the case of the Court Challenges Program, I am one of those who believes that the program is a complete package and that rights should not be compartmentalized. I agree with the CBA on this matter.

[Richard Nadeau, Bloc, Gatineau, QC]

Very well.

Do I have any time left, Mr. Chairman?

[The Chair, Conservative, Steven Blaney]

You have about three minutes, Mr. Nadeau.

[Richard Nadeau, Bloc, Gatineau, QC]

Thank you.

The Prime Minister argues that, as his government is going to respect the Constitution, the Court Challenges Program will no longer be necessary.

I would like to know how the federal government, virtuous as it may well be, can guarantee that it will respect the Constitution according to today's rules in the future. Do you have any examples of provinces, municipalities, school boards or other bodies that do not respect the Constitution? Does it make sense to say that the program is not needed given the society in which we live?

[Michel Doucet]

I do not know of any government for whom ensuring its legislation is constitutionally compliant is not a primary concern, unless it is acting in bad faith, as Ms. Buckley said earlier.

However, history has shown us that even well-meaning governments that want to have constitutionally compliant legislation, sometimes, and indeed very often, are guilty of infringing the Constitution. For example, I believe that the decision regarding the Court Challenges Program violates the language protection provided by the Charter. This is a matter that needs to be clarified by the courts. That is just one example of a contradiction.

[Melina Buckley]

I would add, of course, that on the language rights side many of the cases, as the honourable deputy already said, are actually against other levels of government. There's nothing the federal government can do to ensure that the provinces or municipalities respect the Constitution, other than funding the court challenges program, which is really its way of facilitating that and ensuring that groups and individuals have a way to ensure that those other levels of government are in fact acting constitutionally.

[Louise Aucoin]

Education and health are two very important issues for Canadians. They are both matters of provincial jurisdiction. The Supreme Court of Canada has heard a number of cases concerning health care, such as the Montfort Hospital case. It is thanks to the Court Challenges Program that we have Acadian schools in Nova Scotia and French-language schools in Alberta and British Columbia. These are matters that concern the everyday lives of people who belong to Canada's francophone minority communities, and it is thanks to the Court Challenges Program that these advances have been made. Indeed, without the Court Challenges Program, many communities would still not have a French-language school. We would also have lost the Montfort Hospital. Even when governments intend to comply with the Constitution, it is important to have such a program available to clarify our rights.

[The Chair, Conservative, Steven Blaney]

Thank you, Mrs. Aucoin.

Next we have Mr. Godin.

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

Thank you, Mr. Chairman.

Firstly, I would like to welcome you to the committee.

First, the Court Challenges Program was abolished; now there is talk of reinstating a watered-down version. Official languages cases would be allowed, while others would be sent elsewhere. I was not here when our last witness, Ms. Kheiriddin, who is a law professor at McGill University, appeared before the committee. According to today's Le Droit, however, she argued the following when she appeared before the committee, and I quote:

If you want to convince the government to protect linguistic minorities, you need simply tell it that it has to be the law.

We have to hope, therefore, that the government acts in good faith. However, the problem is that the government simply does not obey the law. We have a great act and a great Constitution, yet infringement occurs on a daily basis. And it is simply tough luck for those who cannot afford to go to court over these failures to uphold the law. What the government is saying is that it will carry on as usual, but it will no longer fund court challenges, because it is going to comply with Canada's laws. I would submit to you that if the law had always been respected, we would never have had to go to court and we would never have needed the Supreme Court either.

Allow me to continue reading the comments that were quoted in the Le Droit newspaper:

If (subsection) 41(2) of the Official Languages Act requires, as a positive measure, the government to establish a program like the Court Challenges Program in Canada, there's your answer. ...That is not to say that the program as a whole has to be restored.

It was almost as if a messiah had come from Montreal to deliver a message to us! Things are starting to look up for the government. Somebody has found a solution to our problems. Let's divide people into groups. For example, members of the Standing Committee on Official Languages should only ever talk about official languages.

What did those who oppose the Court Challenges Program tell us? They told us that the program wasn't fair because it did not provide funding to all groups. Let us get the facts straight. Some groups, for instance, wanted to challenge the same-sex marriage legislation. Indeed, that was perhaps Mr. Harper's main problem. Some witnesses told us that certain minority groups did go to court, but did not receive any funding to support their case. That was the argument that was used.

To my mind, they did get funding insofar as the government used taxpayers' money to defend its case against these groups. Whenever a minority group feels that its rights are not being respected, the government uses taxpayers' money to defend its case. It is not a question of tax cuts, this is how taxpayers' money is really being used.

[Louise Aucoin]

Well said!

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

I have a very important question for you, as we can all see what the government is playing at: it is trying to divide and conquer. Its game plan is obvious. It has become even clearer this week: we have heard from witnesses who claim to have found a solution. We heard the arguments put forward by the woman from McGill University. She tried to tell us what arguments we should use. She told us to stick to official languages and forget about other matters.

I have a question and I would like to get an answer from all of the witnesses. Do you want us to find a solution only for official languages cases, or do you want us to take all of the program components into consideration? Human rights are not divisible, nor is the Constitution. We have to decide, and it is all or nothing.

Mr. Doucet.