Canadian Heritage committee  I tried to set out in my written submission to the committee a week ago that the Court Challenges Program has been on this kind of roller coaster existence of being created and being abolished. The Harper government announced it would abolish it, but never did, and the Court Challenges Program has continued on since 1994 in various forms.

Canadian Heritage committee  I don't know. I don't follow the debates about language legislation in Quebec any further. I suspect there are other people testifying today who might be able to better speak to that. I'm afraid I'm not in a very good position to respond.

Canadian Heritage committee  The charter of rights obviously applies to both the federal jurisdiction and provincial jurisdictions, as well as municipal jurisdictions. I think I can speak to the history of the program, and I think it's clear from the cabinet records that have now been released that Mr. Trudeau's government—the government of Pierre Trudeau, the first Trudeau—was seized with the issue of Bill 101, or what we now refer to as Bill 101, the Parti Québécois' language legislation.

Canadian Heritage committee  Mr. Chair, in responding to Mr. Gourde, I think I made my views clear on the use of the federal spending power to challenge provincial legislation here.

Canadian Heritage committee  I want to clarify off the top that while I appreciate the member's comments, I'm here not in my previous political capacity but because of my long-standing academic work on the Court Challenges Program. In the written submission I sent to the committee a week or so ago, I think I set out that there was a continuing problem with the Court Challenges Program in having a federally funded organization funding challenges to provincial legislation.

Canadian Heritage committee  I should say, Mr. Chair, that when I travel internationally, I'm often asked about this because of my academic work on the Court Challenges Program. I have difficulty explaining, either to legal activists or to government officials in other countries, how it came to be that the federal government pays organizations or individuals to sue in court for these kinds of rights issues.

Canadian Heritage committee  Absolutely. The Court Challenges Program existed for almost 20 years when it had to disclose who it funded and how much money it sent to each court case. I know that there was some argument at the last committee meeting about that, but I think that's a policy that should be returned to under future contribution agreements.

Canadian Heritage committee  I understand that of course litigation is extremely expensive. It's expensive for all the organizations that are involved in different types of human rights and Charter of Rights litigation in Canada. The point I've tried to make in my written submission is that over the course of the years, the Court Challenges Program has gone through the cycle of being created and cancelled and recreated again.

Canadian Heritage committee  Yes, it's very difficult for a number of reasons. First of all, for those of us who are observers—and I've been an observer going back almost 30 years now—when the program cut off information to the public about who it funded and who it didn't in real time, it became impossible to do a proper analysis of what the impact of the Court Challenges Program was.

Canadian Heritage committee  Well, as my colleague Professor Sigalet has said, there's nothing to stop the program from simply waiving the privilege it has claimed in various court cases over the years and to do what every other government funding program does in real time, which is to let us know, once the decision is made or after a couple of days of edit and so forth, through press releases which cases are being funded, to what extent those cases are being funded and the dollar value that's involved.

Canadian Heritage committee  Yes, Ms. Thomas, I think the term “cases of national significance” is a term of art here. It's the same wording used in the Supreme Court Act. It's directing the court to give a leave to appeal in the cases of national significance and has been used in the various iterations of the Court Challenges Program back to the 1970s.

Canadian Heritage committee  My interest in the program goes back to the 1990s, to my—

Canadian Heritage committee  Thank you, Mr. Chair. Thank you to members of the committee for the invitation to speak today. I believe, despite my efforts over the last 25 years, I've become the leading published authority on the history of the Court Challenges Program. As members of the committee will know, the Court Challenges Program has a checkered history.