Good morning, ladies and gentlemen.
Welcome to our meeting.
I wanted to thank our witnesses today from Canadian Heritage and Justice for coming to present to us on the court challenges program. I believe today there is going to be one panel, so the two departments are presenting together, and then we'll have a couple of rounds of questions.
Joining us today from Canadian Heritage are Rachel Wernick, who is the assistant deputy minister, strategic policy, planning and corporate affairs; Yvan Déry, who is the senior director, policy and research for the official languages branch of Canadian Heritage; and Liane Venasse, senior policy and research analyst.
From the Department of Justice, we have Michel Francoeur, who is the director and general counsel, official languages directorate; and Erin Brady, who is the general counsel of human rights law section.
I really appreciate your taking the time to come to address the committee. I know members of all parties are very happy to hear from you. I'd like to turn it over to you to make your presentations.
Thank you, and good morning.
I will take you through a short overview presentation just to get the basic information in front of you. And then, of course, we're at your disposal to answer questions following that.
I will take you through a historical overview of the Court Challenges Program.
The program was created in 1978 to fund court cases seeking to clarify constitutional linguistic rights. It was expanded in 1982 to include linguistic rights guaranteed under the charter. It was expanded again in 1985 to cover federal law, policies and practices based on equality rights under the charter. It was eliminated in 1992, then reinstated in 1994 with the same mandate. It was eliminated again in 2006.
The objective of the program is to achieve a better understanding, respect for, and enjoyment of human rights through the clarification of the following constitutional rights and freedoms.
There are official language rights as guaranteed by the interpretation or application of section 93 or 133 of the Constitution Act of 1867, or as guaranteed in section 23 of the Manitoba Act of 1870, sections 16 to 23 of the Constitution Act of 1982, or parallel constitutional provisions, or the clarification of the linguistic aspect of freedom of expression in section 2 of the Canadian Charter of Rights and Freedoms when invoked in an official language minority case.
With respect to equality rights, it's the equality rights guaranteed in sections 15 and 28 of the Canadian charter, including clarification of section 2 or 27 when invoked in support of arguments based on section 15.
That's a lot of different sections, but we can go into detail in them later if you're interested in exploring that.
The court challenges program was managed by a third party, a not-for-profit corporation called the Court Challenges Program of Canada made up of 17 volunteer board members. The membership was equal across equality and language rights organizations. Funding decisions were made by a language rights panel and an equality rights panel. Each was composed of individuals with experience and knowledge in their respective issues. It funded three areas: test case work including case development, litigation, and negotiation; impact study; and program promotion and access. Members of disadvantaged or official language minority groups or non-profit organizations representing such groups were eligible for funding. It had an annual budget of $2.85 million.
Looking at some of the key facts about the program between 1994 and 2006, the program received an annual average of 112 applications relating to equality rights and 32 applications relating to language rights. The equality rights panel approved 62.5% of these applications, and the language rights panel approved 75.7%. Unsuccessful applications were off-course because they did not meet the key eligibility requirements.
In terms of these test cases, we can provide some stats. Under the equality rights 15.3% were aboriginal; 13.6% related to colour, race, ethnicity, or nationality; 9.2% related to disability; and 8.4% related to gender equality. For the linguistics rights program a large percentage related to education rights and official language of choice. In terms of distribution, 53% of the applicants were groups and 47% were individuals.
I think that it is fair to say that the results of the cases funded through the program enhanced understanding of the constitutional and charter rights of Canadians and informed the legislative and social policy initiatives of the government while it was running. Over the years, CCP provided funding for cases related to important areas including age, race, disability, family status, poverty, religion, and sexual orientation.
Some of the important rulings by the Supreme Court of Canada on cases that received funding from this program addressed the following areas: access to social and economic benefits for disadvantaged groups, including aboriginal people, women, and persons with disabilities; accessibility of public transportation for persons with disabilities; voting rights for prisoners; preventing deportation to torture; access to education in minority official languages; and the right to communications and services in the official language of your choice from the RCMP in New Brunswick.
At the time of its elimination, the government did commit to honour previously approved cases up to the final stage of appeal. There are still 28 equality and language rights cases remaining, and currently $1.4 million annually is being allocated by PCH to manage these cases.
After 2006, following an out-of-court settlement between the Government of Canada and the Fédération des communautés francophones et acadienne du Canada, the language rights support program was established in 2009. Fundamentally it resurrected the same linguistic rights areas as the CCP and funded a similar stream of activities. It's administered by the University of Ottawa and, once again, the decisions on accepting the test cases are made by an expert panel. It has a budget of $1.5 million annually, again reallocated by the PCH, the heritage budget, and the current contribution agreement expires March 31, 2017.
That was just a high-level overview of the program to get us started.
I welcome your questions.
I remember very clearly the rationale that went into this program. I was a member of this committee around 1985 when the charter kicked in, and we had to have a look at and review all parts of Canadian legislation that were completely or partially out of touch with what the charter was saying and what the charter required.
Many of the laws that we had a look at hadn't been touched since about 1892 when they were compiling the Criminal Code, and, indeed, some of the ones from 1892 had been taken from 60 or 70 years previously, from the early 1800s. There was a very important need to make sure that we were up to date.
The job wasn't left just to this committee and/or the government to update our laws. A good case was made to have a number of these laws and these cases brought before the court and, indeed, the court challenges program, but it was believed that, after approximately 20 years of funding these and the challenges, Canada's laws were up to date. It's not that some of these issues don't continue to exist—of course they do, and of course they are a concern—but we have a judicial system in this country that gives lawyers the opportunity to challenge any laws or regulations that they find either discriminatory or not inclusive, and so that was the decision at the time.
I'm sure you track these things. I'm sure there continue to be challenges, perhaps less so than there were in the past, and as I say, there has to have been a decline since the 1980s in terms of the unacceptability or non-compliance of federal legislation.
Aren't there still quite a few challenges to different regulations and laws in this country that are conducted by the lawyers who represent these individuals? I know for sure that many of those non-profit groups continue to take on the Canadian government and use their own resources as opposed to taxpayers' resources. Is that a fair comment?
I think there are two parts to that answer. We are going to have a bit of this today.
I'll let Yvan tell you about where we are, how in recent years the PADL, the language-based program, continues to support cases. Then we can speak a bit, from Justice, about how there continue to be potential cases.
There was an independent evaluation of the program in 2003, which concluded that the program was addressing a need and that it had been successful in supporting important court cases that had had a direct impact on....
The other issue I would point to is the access to the justice system. The biggest barrier, bar none, is financial. There was a demonstrated need to provide some financial support in order to bring these test cases forward.
I'll let Yvan speak a little bit about the PADL.
Since 2009, after the abolition of the court challenges program and the creation of the language rights support program in 2009, we have had 125 requests for litigation support, and 85 of them were accepted. That speaks to the continued need, on the side of language rights anyway, for such a program. We had an evaluation of the language rights support program in 2014 that basically confirmed that need.
The challenges for complainants are high. The cost of litigation has exploded. The type of support these kinds of programs can provide is more than symbolic. It gets you past a certain threshold to have a good case and present it to the courts. We continue to think that there is a need for such a program.
By and large, over the last 30 years we've had one big decision by the Supreme Court a year, 30 decisions, on language rights issues. If we look at the cases that are in front of the courts today, we still have important parts of section 23 on education, for example, that need to be clarified.
I don't know what the trends were on the equality cases after the abolition of the court challenges program, but maybe Justice could speak to that.
Certainly, there are still equality rights cases in the courts facing the federal government, as well as, of course, provincial and territorial governments. I would say that over the last number of years there has been a major decision before the Supreme Court every couple of years.
There was one just this past year in the aboriginal context. It is called the Taypotat decision. The one before that was in 2013, and it involved an issue in Quebec of matrimonial property division as well as support with respect to de facto spouses.
While we certainly have over 30 years of jurisprudence now built up with respect to equality rights, we continue to see cases coming forward against all levels of government. Certainly, we see the Supreme Court itself continuing to fine-tune its approaches to interpreting these rights.
On the horizon, we envision other issues that are going to come up, as well, that will be challenged. This also goes to a basic principle that the courts apply when interpreting the Constitution, which certainly applies to equality rights as well as official language rights. It is the idea that the Constitution is a living tree. It is meant to be interpreted progressively over time so that it can stay in step with changes in social conditions and continue to adapt to modern realities. That goes to the idea of need over time, as well.
First of all, thank you for your presentation.
I take Mr. Nicholson's point about this being fairly well-tilled ground; however, it still seems to be quite fertile. It's one thing to have rights expressed as high-flown words on paper; it's another to have them tested and to make them real. For people who have limited financial means, this is, of course, a great program to do that.
I am interested, in particular, in extending the program beyond language and equality rights. Do you have any recommendations on particular areas to extend the coverage of the program into, whether the charter in broad or particular sections of the charter?
We are leading work right now for our minister and the to modernize the court challenges program. That commitment was in both mandate letters. Of course we're starting that work by launching a fairly extensive consultation with experts and organizations and Canadians.
It's fair to say that as part of the development of proposed options for a modernized program, we will explore, in the spirit of evolving with the times, whether the scope of the program should be expanded. There are two areas that often come back from expert views on where it potentially could grow. This would be looking at some of the fundamental freedoms—freedom of association, freedom of religion, and religious expression, which is an area of evolving context—and applying to provincial and territorial cases, which is the case with language but not with equality.
I'm just telling you what we're exploring. I think it's really important to say that this is in the development phase, but we do good policy work. We look at all of the options and test the viability and strength of the evidence base to go there, and we consult. That work is under way already.
Thank you, Ms. Wernick and your fellow panellists, for your excellent presentation. I want to start with a specific question and, time allowing, I have a couple of general ones.
The question deals with the linguistic rights program. My colleague François Choquette has a private member's bill seeking essential bilingualism among Supreme Court of Canada judges, not requiring a translation for those people. He's framing it as an equal access to justice issue. I notice in your presentation you talked about a case whereby the RCMP in New Brunswick was being challenged for the ability of citizens to communicate in the official language of their choice. Also by way of preamble, I notice Graham Fraser, our official languages commissioner, has criticized the government for failing to take steps to ensure that the superior court justices across the land are essentially bilingual, again as an equal access to justice question.
If legislation is not brought forward to address this in Parliament or in the provinces in question—I'm thinking of the Caron case in Alberta—then is this conceivably an issue that the court challenges program might address?
I try not to intervene too much, but I want to understand. I'm going to try to follow Mr. Hussen's comments to perhaps try to boil them down a bit differently.
With respect to the program for equality rights, when it did exist, and, today, with the new, more defined language rights program, which could theoretically be part of a broader court challenges program, I think what he's saying is that probably more groups than individuals have made applications because they have greater knowledge about the program.
What I think he's trying to come down to is that if the court challenges program were reintroduced, what could be changed to make more Canadians who are individual litigants, and groups that may not have applied very frequently because they don't really understand the program and don't have specialists, more aware of the program and more able to apply for it?
That's a very good question and another important area to explore as we do our option development and policy development.
I do think it's the rationale behind the activity stream that was around promotion and awareness. There was dedicated funding to promoting the program itself. Obviously, that's often a challenge in government. If people don't know the program exists or they don't understand it, they're not going to use it.
It's another area where times have changed. When you look at the old reports on the program, its brochures and pamphlets, maybe in the modern context of social media and the web, we'll be able to explore different avenues for promoting the program and ensuring that more Canadians understand that it exists, what it is, and how to access it. It's definitely an area to continue to push in terms of modernization.
If I may add something, often it's a group that will go to court. They are a group; they have resources; they have a board and they can make decisions, but, ultimately, the decisions that they gain from the courts are applicable to individuals.
In the language rights world, a sizable number of cases revolve around education. Often you have parent associations that will speak for school boards and they will go to court so that children will have access to an education of equal quality, etc. The school boards have the right to make decisions as to who does and who doesn't get into, in this case, a francophone school.
With all these decisions, albeit spearheaded by groups such as parent associations or groups of that ilk, the ultimate goal is to get decisions that will have an impact on individual parents or individual children. So the vehicle to get a court decision is often a group, but the impact goes beyond the group that is going to court.
We have had experience with the language rights support program that was created after the elimination of the CCP back in 2006. The CCP cap for a litigation for the first court was $60,000. When we started the LRSP we put that cap at $85,000. After one year the panel of experts recommended that amount be brought up to $125,000 per case, so we had more than doubled the amount we were offering per case for litigation from 2006 to 2010.
We just had a program evaluation and this amount is still considered on the low side of what a litigation does cost. A litigation such as the Caron case has been reported to cost between $800,000 and $1 million. It could even be more than that.
Everyone who was interviewed for the program evaluation said this $125,000 was not symbolic. Support by that program adds credibility to a case because it's not just someone, somewhere going to court and suing the government. Instead you had a panel of experts and leaders in that field who approved the litigation. There's that aspect that will help the litigant as well.
Many of the lawyers in that field are known to do pro bono work, and that becomes part of the equation.
Yes, the cost of court cases has exploded over the last number of years. I'm sure my colleagues from Justice can talk about that. We're trying to catch up in a way, but the plan was never to pay in full for those litigations. The plan is to bring the first $100,000 to kick-start things, but never to pay in full, and hence the idea that it's groups and not individuals that bring these cases forward. You have to be solid to be able to sustain that type of burden for the long run if you're paying for it yourself.
When I'm envisioning access to justice, and I'm thinking that the program would be useful in establishing that access to justice, in the case of individuals, I could see where funding would be required. In the case of groups, often they have substantive funding available to them.
Is there a financial criteria that needs to be met before groups can access the funding? What kind of cost-sharing ratios do you consider, or do you fund 100% to certain thresholds? Tell me a little bit more about your fee schedules.
Further to that, are there hourly rate restrictions when counsel is retained, and what are those? I'd really be interesting in cost-sharing. When a group has the ability to pay for a challenge, and because there's a government program available, chooses rather to go that route, I'm wondering what your criteria is in establishing those.
But it has no precedential value for British Columbia in that example.
Alright, it's been resolved.
I know that every case is different. I know that the legislation at issue is different, but could you say, “Well, hold on, there's not much sense in proceeding with that example in another province. We're going to put our eggs in a different basket”?
My question is about how you prioritize your cases and make decisions.
In the case of the language rights support program—and there are differences between the way the CCP was run and the way the language rights support program is run—the panel is composed of four lawyers who have experience and knowledge of language rights issues, one expert in ADR, or alternative dispute resolution, who is also normally someone with a legal background, and four representatives of minority communities.
The program was established, as you know, from an out-of-court settlement with the Fédération des communautés francophones et acadienne du Canada, so the angle of option language minority rights is pretty strong in the program, but it covers all kinds of language rights.
That panel is sovereign, in a way, in the decisions that they make on cases. The program staff and analysts will bring a case forward and write a précis. Then the experts will sit and look at all of that, look at the budget they have available, and decide which cases they will support.
The language rights support program produces an annual report that describes most of the cases that have been supported. Should a litigant decide that he or she doesn't want the fact that he or she is supported by the program to be known, there is a confidentiality clause. We don't even know, if they don't want us to know, which case they support. The litigant has the right to be discreet, in a way.
It's run totally independently. We have the reports. Most of the information that we shared with you today is drawn up from the old reports of the CCP or the reports that have been made available to us by the language rights support program, but it is independently run.