:
I call the meeting to order.
Good afternoon, everyone. Welcome to meeting 116 of the House of Commons Standing Committee on Canadian Heritage. I would like to acknowledge that this meeting is taking place on the traditional unceded territory of the Algonquin Anishinabe people.
Today's meeting is taking place in a hybrid format—I think we know that—pursuant to the Standing Orders. This afternoon, members are attending in person in the room and remotely by using the Zoom application.
I would like to take this opportunity to remind all participants of this meeting that taking screenshots or photos of your screen is not permitted. Proceedings will be made available via the House of Commons website.
Before we get into Bill and hear from Mr. Ron McKinnon, we have in front of us, if you don't mind, the budget for this study, in the amount of $19,200. I believe it was distributed just before the meeting, at about two o'clock. Is there any discussion, or does the committee wish to adopt the budget? Is there any feedback?
Everyone is good with that. Okay.
(Motion agreed to)
I do wish that we would make more use of Zoom, as we have a lot of expenses coming from Vancouver, Calgary, Edmonton, Montreal and Toronto. We do have capabilities here. When it comes time to do airports and to bring people in, it's nice, but we do have the capability to use Zoom here in the House of Commons, and that could save us a lot of money.
We'll go with this. I'll have it adopted, and we'll move on.
For the first hour, from 3:30 to 4:30, we welcome Ron McKinnon, member of Parliament for Coquitlam—Port Coquitlam.
You may proceed with your opening statement on Bill . You have five minutes, sir. I know you are on Zoom today, so we welcome you to the Canadian heritage committee.
The floor is yours.
It's a pleasure to appear before the committee today to speak to my private member's bill, Bill , the court challenges program act.
The genesis of this bill was the work we did in the Standing Committee on Justice and Human Rights in the 42nd Parliament. In that committee's “Access to Justice” report, one of the key recommendations was to enshrine the Court Challenges Program in law.
Canada is an open, inclusive democracy in large part because the rights of individuals are respected. However, during our hearings in that committee, we learned that it is often too easy to take for granted the many rights and freedoms that we enjoy as Canadians.
[Translation]
The court challenges program protects and reinforces our constitutional rights by providing financial support to persons and organizations seeking to put test cases of national significance before the courts. More specifically, the program provides funding to protect our constitutional and quasi-constitutional official language and human rights.
First created in the 1970s, the court challenges program plays a decisive role in helping Canadians clarify and affirm their rights, especially their official language and equality rights. Although the program was cancelled in 2006, our government restored it in 2017. We expanded it to cover rights that had not initially been included but that are protected by specific sections of the Canadian Charter of Rights and Freedoms respecting fundamental freedoms, including democratic rights, freedom of expression, the right to life and freedom and security of the person.
[English]
The program has, over the years, been used many times to protect the rights and freedoms of Canadians. It has provided funds to disabled Canadians to help ensure they are treated fairly; it has helped to clarify the rights of LGBTQ+ people to marry whom they love; and it has strengthened the rights of official language minorities to protect their rights and preserve their culture.
The Court Challenges Program also provided support to important cases such as Andrews v. Law Society of British Columbia, wherein the Supreme Court of Canada ruled that a law society could not prevent a qualified permanent resident from practising law in Canada simply because they were not a Canadian citizen. Think of the relevance of this ruling today as we try to recruit doctors and nurses from abroad.
[Translation]
The court challenges program reinforced the rights of francophone minorities in British Columbia, helping, in particular, to protect the rights of francophone children to receive French-language instruction of quality equal to that of English-language instruction.
In its June 2020 decision, the Supreme Court of Canada reaffirmed the importance of education in the official language of one's choice. The court also acknowledged the central role that section 23 of the Charter plays in enhancing the vitality of official language minorities communities.
[English]
I know that some may ask....
I'm sorry?
Mr. McKinnon, thank you so much for coming and being willing to speak with us about your bill. I look forward to discussing it in just a moment. However, before I dive into that, I wish to give notice of a motion for the committee's consideration.
At this point in time, I will invite the clerk to distribute it so that everyone has access to it in writing. Bear in mind, of course, that I am giving notice of this motion.
The motion I wish to give notice of reads, “Given that, according to a National Post article published on April 17, a York University faculty committee has presented a list of anti-Semitic recommendations that include labelling the support of Israel as 'anti-Palestinian racism', classifying anyone who supports Israel as 'anti-Palestinian, Islamophobic and anti-Arab', granting academic freedom and free speech to pro-Palestinian students while revoking these same rights from Jewish students and anyone supportive of Israel, and identifying Zionism as 'a settler colonial project and ethno-religious ideology' that should be isolated and destroyed, and given that the Government of Canada has committed to the Canada anti-racism strategy; and that the Minister of Canadian Heritage is responsible for 'fostering and promoting Canadian identity and values, cultural development, and heritage', and that the 2024 Canadian universities anti-Semitism report highlights the serious problems that our universities have with anti-Semitism, anti-Zionism and anti-Jewish hate, the committee unequivocally condemn the anti-Semitic conduct of this faculty committee at York University and report this to the House.”
Chair, I have given notice of this motion, but I believe it is so important. I would imagine that all around this table agree that anti-Semitism is wrong and that this type of vile conduct should be condemned in the most serious terms.
Given that we should share this commonality, I seek unanimous consent to consider this motion moved and adopted.
I would just remind the honourable member that the six minutes are mine, and I can use them as I wish.
This was a really important motion that I brought forward today, and I am confused as to why the Liberals wouldn't grant unanimous consent when we have evidence there is anti-Semitic rhetoric and conduct taking place on university campuses across this country. The Liberal government has signed off on, and committed to, a Canada anti-racism strategy, and it is incumbent upon the to abide by her mandate, which is to foster and promote Canadian identity and values, cultural development and heritage. I would certainly hope that anti-Semitism does not belong within the definition of that.
There was an opportunity here today for us all to agree to something that seems quite collaborative in nature. All of us should agree that it is wrong to perpetuate hate toward the Jewish community in Canada, and I'm confused and grieved, actually, by the fact that I wasn't given unanimous consent to move that motion forward today.
That's me, but further to that, I'm concerned about the Jewish community and I'm concerned about how the current government that's in power treats that community. I'll leave it there for now.
:
I certainly have heard no dissenting voices around this bill. The francophone communities in my neighbourhood are very strong and vital, and they certainly recognize the value of the official bilingual program and the ability of small groups like themselves to take action to preserve their rights as necessary.
In my community, not too far from where I live, in fact, there is a school devoted to francophone students, mainly from francophone families. We put our own children in French immersion from grade 1 onward, and they emerged fully bilingual. While I struggle with the language—and I can read, too, a little bit, to the painful ears of francophones—they are fluently bilingual. I see this across the country as a consequence of official bilingualism.
In Red Deer, where I grew up, you'd almost never hear French, but now wherever I am in Alberta, such as Calgary, or even in British Columbia, I can walk on the street or go into a restaurant and occasionally catch a snippet of French. It shows that the language is thriving and alive across the country, and I think that's in large measure due to the official bilingualism program. That is supported and sustained by measures such as the Court Challenges Program.
Thank you, Mr. McKinnon, for being with us to discuss your Bill .
I always find it interesting to hear people say how vital and vigorous bilingualism is across Canada based solely on examples involving their friends and families. I know two Swedes who speak pretty good French, so I think Sweden's a great example of a country where French is flourishing. That's roughly the same kind of example.
You talk about British Columbia, where you increasingly hear French being spoken. I've been to Vancouver many times and haven't heard a lot of French, but you're right: there may be more and more of it. Restaurant operators, business people and others go there and do contribute somewhat to the French fact, which is disappearing at an accelerating pace. Even in the streets of Montreal, you increasingly hear people say they find it hard get served in French. My MP colleagues from Montreal Island would be in very bad faith if they denied that.
When you prepared your Bill , in which you seem to be very interested, which is all to your credit, did you consult many Quebec groups about their expectations and concerns regarding this program?
:
Thank you for the question.
I don't know that they're not available. I believe the work of the various advisory committees is available. I haven't checked that myself.
I should point out that this bill does not create the Court Challenges Program. It does not add to its scope of action and it does not reduce it. Really, the whole point of the bill is to make it harder to get rid of it. If some future government decides that we don't want people to be able to take us to court, then they have to change the law to change it back. For me to expand the nature of the Court Challenges Program, to expand it or change it officially, would probably result in more expenses, and it is not possible to undertake that in a private member's bill without getting a royal recommendation.
Also, from my experience in this place, I understand that if you try to do too much in a private member's bill, you're most likely not going to succeed. The best thing to do is to take small bites that you can swallow and not choke on.
Thank you very much, Mr. McKinnon, for presenting this private member's bill to us today.
For linguistic minorities, for women and for indigenous people, the Court Challenges Program matters. Its objective is to provide financial support to Canadians to bring before the courts test cases of national significance that aim to clarify and to assert certain constitutional and quasi-constitutional official language rights and human rights.
Over its nearly 30-year history, from 1978 to 2006, the program funded more than 500 cases and interventions. These included a landmark ruling affirming sexual orientation as protected from discrimination, ruling out the defence of implied consent in sexual assault cases and confirming Métis and non-status rights as constitutionally protected.
It's also a program constantly under threat, whether it's by Liberals due to a lack of funding or by Conservatives who have twice cut the Court Challenges Program completely—once under Mulroney, who originally expanded it but then decided to withdraw financial support, and then again under Harper in 2006. Conservatives clearly like their challenges underfunded and under-resourced.
Multiple committees, civil society and others have recommended that the government enshrine the Court Challenges Program in legislation in order to enhance its sustainability and to ensure any cancellation would require the approval of Parliament.
Are you, Mr. McKinnon, worried that a future Conservative government would cancel a court challenges program, absent this legislation?
:
Thank you very much for that.
Since the Court Challenges Program was reinstated in 2017, 107 court cases related to official languages have been funded by the program. As the official languages critic for the NDP and as someone who played a significant role in passing , the modernization of official languages bill, which involved enshrining funding for the official languages rights and human rights branches of the Court Challenges Program, I recognize how important this work is.
The federal government doesn't always get it right, though, and even with the changes made to the Official Languages Act, we know that more challenges will occur. The official languages branch of the Court Challenges Program currently uses one-quarter of its total spending. Are you satisfied with this number? Where do you think it should be? Should it be increased and, if so, by how much? What are your thoughts?
Welcome to the committee, Mr. McKinnon. I'm privileged to be here today.
Mr. McKinnon, I want to thank you for introducing this bill. You said that a private member's bill shouldn't include provisions for the disbursement of public funds; that's done in accordance with the procedure and Standing Orders of the House of Commons.
Mr. McKinnon, you mentioned that your bill concerned only a small part of…. I disagree with you: Your bill is very important. It's very important that the court challenges program be made permanent. As you noted, Conservative governments cancelled the program twice. Consequently, it's very important that it be made permanent, and many thanks to you for the work you've done through this bill.
I also want to thank you for the contribution you made, with other colleagues and me, to Bill , which helped to modernize the Official Languages Act. You supported the bill together with 300 other members of the House of Commons. All the parties voted for the bill, which wasn't that hard to do. I thank you for the work you've done.
As you know, Montfort Hospital in Ontario is still open thanks to the court challenges program. Ontario's Conservative government had cut off funding for the program and wanted to abolish it. The program made it possible to preserve Montfort Hospital, which provides services to Ontario francophones. Thank you for your bill.
Here's my first question. We're obviously talking about the official languages situation across Canada, and that's important, but you also mentioned persons with special needs. Would you please tell us more about the fact that this bill will also protect the rights of special needs individuals? You are also a major human rights advocate.
:
That's a really big question.
Fundamentally, whatever people's situation in life is—whether it's a matter of disability, gender issues or whatever—when they feel their ability to succeed has been impacted by government action or decisions that impact their rights as identified in the charter, there needs to be a way for them to bring those concerns forward to an appropriate judicial body or organization that can adjudicate their concerns, decide whether or not they have a leg to stand on, if you will, and to propose some action to be taken within the context of whatever that body is. This is essential.
As I said, if we can't test things against the charter, the charter is meaningless. It is an incredibly important aspect of our judicial system and our whole legal system. The charter is fundamental, and it is basically what we have to rely on to keep our different governments in line to be able to protect our rights.
Some of the opposition members may not appreciate that sometimes the government of the day doesn't get it right. There needs to be a way to test whatever action the government has taken if you feel that it's contrary to your best interests. You might be wrong, but unless you have a chance to test it, you don't know.
If it's a matter of significant public import because the decision that is made in this case will have application across the country, it is really in the public interest that we support a means for these decisions to be examined and executed.
:
But my question is quite important, Mr. McKinnon.
We have nothing against the court challenges program, but when we talk about it, we don't seem to draw a distinction, and that's a matter of acknowledging the values that are specific to Quebec.
This program is often used to challenge statutes that have been democratically passed by the National Assembly of Quebec and are entirely legitimate. But don't get me wrong: That's not a reason for us to oppose the program, but we're calling for transparency.
Earlier I asked if you would consider it appropriate to grant public funding to organizations that have significant financial resources and can afford the cost of a court challenge.
Do you think those organizations should be able to use the program?
:
Thank you for sharing that.
Mr. McKinnon, you drafted a bill to enshrine the Court Challenges Program under law, but it's not lost on me how many times the federal government has fought first nations in court, first nations that are defending their rights. It seems that change for first nations, when it comes to the federal government, often only comes when it is ordered in court.
The Liberals fought first nations residential school survivors, children who were kidnapped from their homes and forced into residential schools where they were abused irreparably. They fought first nations children who didn't get the education funding that they deserved. They fought first nations, including Tataskweyak Cree Nation here in my constituency, that didn't have access to clean drinking water.
In your defence of rights, would you agree that the federal government should not be spending the millions of dollars it is in fighting first nations in court that are simply defending their fundamental rights?
:
First of all, I want to acknowledge that Anthony was the chair of the justice committee in which we did that report. I worked with Anthony for four years on that committee. It's good to see you back.
As was mentioned, we saw that both Mr. Mulroney and Mr. Harper cancelled it. I think it's sometimes a case of mistaken priorities. If people think of it as “why should we pay to have people sue us?”, then it's a problem. If we think of it as “why should we pay to support, to advance and to strengthen our democracy?”, then it's not an issue.
It's to make it less of a whim: “Why should we pay for people to sue us? Let's just cancel it.” Make it something that has to be more deliberative. It has to go before the House to be argued and to be debated. It's not going to be a whimsical change; it's going to be a deliberate and a much more difficult thing to change.
As Mr. Housefather mentioned, I think this is a fundamentally important aspect of our democracy. We have to do whatever we can to strengthen it, to maintain it, and when and wherever it's possible, to expand it.
:
Thank you very much, Mr. Chair.
[English]
Thank you for the invitation to provide information on the Court Challenges Program.
First, I recognize that we are gathered on the unceded traditional territory of the Algonquin Anishinabe people.
In my role as assistant deputy minister responsible for the strategic policy, planning and corporate affairs sector, I've been responsible for the Court Challenges Program for more than the past five years.
The University of Ottawa was selected as the independent organization to implement, administer and promote the Court Challenges Program in 2017. It is an arm's-length entity, independent of the government, and it was chosen through an open and transparent process. The university supports two expert panels that are responsible for making funding decisions for the program—official language rights and human rights expert panels—and each expert panel is composed of seven highly qualified members identified through a selection process managed by the Department of Canadian Heritage for possible appointments by ministers.
The Court Challenges Program was initially established in 1978 to enable people living in Canada, regardless of their means, to bring forward legal cases when they believed their fundamental rights had been violated. It also supported individuals and organizations in challenging laws and policies that were perceived as undermining Canada's fundamental rights and freedoms. Since its initial creation 46 years ago, the Court Challenges Program, through its various iterations, has funded and supported major court cases that have significantly shaped and impacted the evolution of jurisprudence in matters of official languages and human rights in Canada.
The Court Challenges Program has historically been, and continues to be, administered by a third party at arm's length from the government, to avoid any real or perceived conflict of interest on the part of the Government of Canada. The program has played an important role in ensuring access to justice and equality for all Canadians.
Moreover, the program has contributed to the protection of the human rights of all people in Canada, supported vulnerable and marginalized communities and helped minorities in defending their rights, consistently promoting justice and equity.
[Translation]
The court challenges program has also played a decisive role in supporting official language minority communities across Canada. By funding challenges of statutes and policies that may erode language legislation, the program helps preserve the vitality of those communities and sustain linguistic duality and diversity in Canada.
I want to emphasize that the court challenges program may not fund challenges to provincial or territorial human rights statutes, policies or practices. However, as has been the case since it was created, the program's official languages component may fund cases involving provincial and territorial governments because some constitutional language rights apply specifically to the provinces and territories.
Since it was restored in 2017, the program has funded 115 official language rights cases and 160 human rights cases. In the 2022–2023 year alone, experts granted funding for 74 cases, consisting of 33 official language rights and 41 human rights cases. Those proceedings mainly involved the language rights of official language minority communities, indigenous rights, the rights of the LGBTQ+ community, those of disabled persons and civil liberties.
The University of Ottawa publishes the data on those cases every year once the annual reports have been posted to the program's website.
The program carries out its mandate to promote equality, justice and human rights in Canada by funding and supporting these cases. Total funding for the program was increased in the 2023 budget. The resulting doubling of the federal budget over five years, as announced in the 2023 budget, will afford the program an additional $24.5 million until 2028. One third of annual funding is allocated for the clarification of language rights, and additional funding will enable the program to support more applications.
In conclusion, the program, since its inception, has produced meaningful results consistent with its mandate and objectives, and effective mechanisms are in place to maintain its integrity and proper functioning, including its independent operation.
Thank you for your attention, Mr. Chair. I will now be pleased to answer questions about the program.
:
Thanks to the witnesses for being with us today.
I'd like to clarify a few points.
The passage of Bill will send a clear message to provincial governments that it's important and necessary both to make the court challenges program permanent and to provide additional funding for it in future federal government budgets. Passing the bill we're considering today is the right thing to do because it will help individuals living in minority communities across the country.
My question is for both witnesses. Earlier we talked about experts and what that involves. During consideration of Bill last year, members of the committee who are here today discussed the importance of the court challenges program and the fact that financial decisions were made by an expert panel, not by politicians. That aspect is very important.
Would you please describe for the committee how that expert panel works, how its members are selected and how it operates independently?
:
Mr. Chair, I want to thank the member for his question.
The members of the expert panel are selected through an open and transparent process. This morning, for instance, we posted to our website information on an open and transparent process for recruiting candidates willing to sit on the official language rights expert panel. In accordance with the process established from the start, a selection committee reviews the applications. I chair that committee, and I'm here today with a representative of the Department of Justice and an outside representative from the private sector. We identify candidates who meet the criteria we've set.
Next, we conduct interviews, as necessary, with those individuals to ensure they meet the criteria and to assess their knowledge of the field, official languages in this case. We then establish a pool of potential candidates. When positions on the expert panel need to be filled, we send the minister a list of candidates. Once the minister has made a decision regarding a new member on the expert panel, we inform the University of Ottawa, which is responsible for the program, of that decision. I then contact the person in question to inform him or her of the minister's decision and to determine whether that person wishes to accept the position.
We then inform the University of Ottawa that there is a new member on the expert panel and speak with the individual to ensure he or she is well aware of the way the expert panel operates and of the program's parameters. In answering the previous question, I mentioned the criteria for what constitutes a case of national significance, test cases and so on. The members of the expert panel generally meet four times a year to review funding applications submitted to the program and to make their decisions.
That's why I'm asking. We do know how much goes towards official languages. I realize the other category is human rights, but we also know indigenous rights are distinct in and of themselves, so I think that this differentiation.... The limited scope of this bill has been identified as an issue by legal advocates such as Cindy Blackstock, so it would be important to know how important the Court Challenges Program has been for first nations, Métis and Inuit peoples and groups. That breakdown would be very useful for our committee, and certainly for parliamentarians.
The Department of Canadian Heritage funds the Court Challenges Program 100% through contribution agreements. It's funding that's divided between two branches: human rights and official languages rights. You referenced how much money was announced in budget 2023, but we know that every year a number of worthy applicants are not funded, not because they didn't qualify but because the program is underfunded, which is certainly a point of concern for us.
How does this work? You've spoken of criteria. Does it work on a first-come, first-served basis? How do you decide which worthy applicants are rejected?
:
Mr. Chair, I understand the intention behind the motion that Mr. Noormohamed is bringing forward today, and I don't disagree with the principle.
However, we're at day one of what's proposed in the motion. In other words, we're coming to the end of the first meeting that Mr. Noormohamed proposes be held on consideration of this bill. If we had had this proposal and discussion earlier, today's meeting might have been planned differently. Allow me to explain.
The Bloc Québécois attaches importance to consideration of the bill, and we intend to call very few witnesses. We've invited only two witnesses, whom I consider extremely relevant. We would like to have a chance to hear those two witnesses and to have them heard in committee. However, I can't confirm now that either of those witnesses or that the two witnesses invited by the Bloc Québécois will be available on April 30, the last date we have on which to hear witnesses.
It seems to me that precipitating matters in this manner will prevent us from doing a proper job. Once again, I don't disagree with the idea at all. We definitely have to work quickly. We have a lot on our plate between now and the end of our parliamentary business. However, I don't think it makes sense to allow only one more meeting to hear from witnesses before commencing clause-by-clause consideration. That shows a lack of respect for the parliamentary business we have to conduct.
I therefore move an amendment in the same spirit as that of Mr. Noormohamed's motion, but one that will at least allow the committee some time to do its work properly in the present circumstances.
I will read the proposed amendment:
That, notwithstanding the motion adopted by the committee on Thursday, February 1, 2024, with respect to the review of Bill C-316, the Committee schedule a minimum of three meetings with witnesses on April 18, April 30 and May 2 respectively, that the deadline for amendments be no earlier than April 30, 2024 and that the Committee begin clause-by-clause no earlier than May 7, 2024.
I have the written version here, in English and French, which I can immediately offer to our clerk so she can retranscribe it and circulate it to committee members.
Thank you.
:
I have two questions about that.
First, I agree on the subamendment. I think it's essential that we have the time we need to do our work properly. This is a bill, not some pointless study. It's important. I'm in favour of Ms. Thomas's subamendment because it allows us a little more time.
However, I have a question in mind, and perhaps the analysts can answer it.
If we proceed as proposed, are we allowing ourselves enough time between the deadline for amendments, May 3, and the start of clause-by-clause, on May 7?
Mr. Chair. I think that's reasonable. I know my Liberal and NDP colleagues were in favour of the initial motion earlier, but I think we also have to allow for the work that we have to do for any bill.
I understand why we want to precipitate matters, why we want to hurry, but this is an important bill for the Bloc Québécois, for Quebeckers, for Canadians and for official language minority communities. We must respect the work we have to do, and we must also have to respect ourselves. We need to do our work properly.
I have some important witnesses to be heard in committee, and I want to make sure they can be heard. As Ms. Thomas said, I want to have the time to prepare the amendments based on the testimony we've heard. We have to take the time to do the job right.
:
Is there any other discussion on the subamendment?
Seeing none, we will have a vote on Ms. Thomas's subamendment.
Do you want to go ahead, Clerk?
Keep in mind, committee, that 5:40 is the deadline here.
(Subamendment negatived: nays 6; yeas 4 [See Minutes of Proceedings])
The Chair: The subamendment is defeated.
We are at 5:40 right now.
:
With all due respect, Chair, I don't have to make my comments short. I do have to remain relevant, which I am, because I am saying that in regard to the amendment that is on the table right now, I cannot support it, because we have been asked to submit our amendments before we hear from all of the witnesses, and that is inappropriate.
It is inappropriate to require the members of this table to submit their amendments and changes to this bill before we have heard from all the witnesses. We should have the opportunity to hear from all those who wish to speak to this bill and share their various concerns with us in order to gain an understanding of what they see in this bill—both the pros and the cons, the areas that are strong and the areas that are weak, the areas that can stay as they are and the areas where perhaps changes are needed.
If this committee is not willing to hear from all those witnesses concerning this bill before we have to put forward amendments, that is just inappropriate. Really, what this committee is saying, then, is that the voices of individuals who come here after the amendments are due are null and void, because we've already made or suggested any changes we want to make. That's inappropriate. Procedurally, that is just inappropriate.
For crying out loud, this is the Parliament of Canada. This is a place where we create legislation. This is a place where we are putting pieces of legislation in place, bills in place, that govern the people of Canada. If we can't do that in the most appropriate manner possible, then shame on us. Asking for our amendments before we've properly heard from witnesses is 100% inappropriate. It is incredibly irresponsible of those at this table.
I applaud the Bloc member for seeing this and voting in favour of the subamendment that was previously discussed. Those extra 24 hours seemed appropriate, but here we are: We're back discussing a better amendment, in the sense that it proposes three meetings to hear from witnesses. I appreciate that because we'll hear from more voices, and I believe the Bloc member is correct that this is very important, but again, this amendment requires that the amendments to the bill be submitted before we hear from all those who would wish to testify.
Good afternoon. We're resuming meeting number 116 of the House of Commons Standing Committee on Canadian Heritage, which was suspended on Thursday, April 18.
First off is avoiding audio feedback.
Before we begin today, I would like to remind all members and other meeting participants in this room of the following important preventive measures.
To prevent disruptive and potentially harmful audio feedback incidents that can cause injuries, all in-person participants are reminded to keep their earpieces away from the microphones at all times. As indicated in the communiqué from the to all members on the morning of Monday, April 29, the following measures have been taken to help prevent audio feedback incidents.
First, all earpieces have been replaced by a model that greatly reduces the probability of audio feedback. The new earpieces in front of you are black in colour, whereas the former earpieces were grey. Please use only the approved black earpiece.
By default, all unused earpieces will be unplugged at the start of the meeting.
When you are not using your earpiece, please place it face down on the middle of the sticker for this purpose that you will find on the table, as indicated. Please consult these cards on the table for guidelines to prevent audio feedback incidents.
The room layout, as you've noticed, is quite a bit different. There's an increased distance between the microphones to reduce the chance of feedback.
These measures are in place so that we can conduct our business without interruption and protect the health and safety of all participants, including the interpreters. Again, thank you for your co-operation.
Today's meeting is taking place in a hybrid format, and I would like to make a few comments for the benefit of members here today.
As always, please wait until I recognize you before speaking.
We're resuming the debate on Mr. Noormohamed's motion, starting with the amendment moved by Mr. Champoux. However, as you may or may not know.... I'm just going to read this:
“That, notwithstanding the motion adopted by the committee on Thursday, February 1, 2024, with respect to the review of Bill , the committee schedule”—and this is a change—“a minimum of three meetings with witnesses on April 18, April 30”—which is today—“and May 2”—which is Thursday—“respectively, that the deadline for amendments be no earlier than April 30, 2024”—which is today—“and the committee begin clause-by-clause consideration no earlier than May 7, 2024.”
On May 7, of course, I believe Ms. Tait from the CBC is coming. That's a week from today.
If the amendment is, as we said, inadmissible, I think, Mr. Noormohamed, you've made those changes.
Is there any discussion on this?
Okay, we're going to move on. I was going to actually rule the motion out of order because of the dates that you first proposed, especially April 18 and so on.
I think the changes are required. We have the three meetings, and the third and final meeting would be this Thursday.
Do we all agree with these changes, then, going forward?
Go ahead, Mrs. Thomas.
:
I came in here today.... Nobody knew this, but my interpretation of this was that it was out of order because of the dates. Then we would proceed from there.
We have a number of witnesses standing today by who would come forward. I was going to have the clerk, along with the analysts.... We were going to shut it down for a minute or two to do the audio checks, and then we would do the five presentations in front of us.
Yes, I was going to rule it out of order.
All right? Are we all in agreement with that?
Some hon. members: Agreed.
The Chair: If you don't mind, I would like to suspend, then, for a maximum of two minutes. We have five people online, and we need to hear what they have to say on Bill .
We have done some sound checks, but I think we just want to make sure that our guests are with us.
:
I call this meeting back to order.
Pursuant to the order of reference of Wednesday, November 22, 2023, the committee is resuming its consideration of Bill .
I would like to welcome our witnesses. We have four on video conference, and we have one in the room with us this afternoon.
We have Mr. Ian Brodie, professor, from the University of Calgary; Guillaume Rousseau, law professor; and Geoff Sigalet, associate professor.
In the room, we have Marika Giles Samson, director, Court Challenges Program of Canada.
Thank you for coming.
Also on video conference, from the West Coast Legal Education and Action Fund in Vancouver, we have Humera Jabir.
As you all know, you have up to five minutes for opening remarks, after which we will proceed with rounds of questions.
Up first is Mr. Brodie.
I invite you to make an opening statement. As I mentioned, you have up to five minutes.
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. It was first established in 1978 with the intention of funding litigation against Quebec's language laws, particularly Bill 101, and by extension language laws in other provinces. Its mandate was expanded to cover what we would today call “social justice litigation” in 1985. It was then shuttered in 1992 as part of budget decisions that year. It was recreated a few years later. The federal government announced it would be cancelled again in 2006, although in fact the program never closed. It has carried on since then under a variety of sponsorships and in different organizational forms.
From 1985 until about 2000, when public interest litigation was in its infancy in Canada, the Court Challenges Program certainly helped boost that form of political organization in this country. Today, however, the Court Challenges Program probably finances a relatively small slice of Canada's public interest litigation. Most court cases about human rights, and certainly all the cases that try to limit government action, are financed by private means or by means of provincial legal aid programs without the help of the Court Challenges Program.
In my written submission, I recommend three amendments to the bill.
One is to stop the federally funded Court Challenges Program from financing court cases against provincial actions. This has been an issue since the program was created in 1978. If the federal government decides it should challenge provincial legislation or provincial programs, it can do that directly and transparently by means of litigation or other techniques.
A second amendment would prevent the program from funding cases that involve two or more sections of the Charter of Rights being in conflict with each other. There is no reason, in my submission, for the federal government to finance litigation that could, for example, limit freedom of expression or freedom of religion in the name of pursuing equality rights or vice versa.
Third, to head off the cycle of creation and cancellation, I recommend expanding the program's board to include nominees from all parties represented in the House of Commons. I think that would ensure the program would only fund cases that are genuinely beyond partisan disagreement.
On reflection since my submission, I would urge a fourth consideration, although it's not in the written submission. The public annual report of the program envisioned by proposed subsection 5.1(1) in the bill before you should include a list of all the cases that are funded and the amount of funding devoted to each of those cases.
The program used to allow the public to know what cases it funded and what cases it did not, but the Court Challenges Program now serves as a way of turning our tax dollars into untraceable dark money, and that should come to an end. The program should be reporting its funding decisions to the public in real time. If that's not feasible, it should report those decisions in its annual report.
Mr. Chair, that's all I have to say.
Thank you for inviting me to talk to you about some of my language law research and, of course, my analysis of Bill .
I often recall that in language law, there are two basic major models or principles: the principle of personality and the principle of territoriality. I am going to provide a brief overview of this issue before addressing the bill.
The principle of personality is simple. It offers individuals the freedom to choose among multiple languages for official use. This is the situation with official bilingualism or multilingualism. On the other hand, under the principle of territoriality, a single language is mandated, a single official language: the language of the majority.
A review of the scientific literature clearly shows that the territoriality model is really the only one that is able to enhance the vitality of a vulnerable minority language. The best example is the case of Canada, which is based on linguistic personality. The percentage who are francophone fell from 27.5% to approximately 22% between 1971 and 2021. In Switzerland, on the other hand, the francophone percentage rose from 18.4% to 22.9% between 1970 and 2017.
The reason I am telling you this is as follows. During the 1960s and 1970s, when there was a decline in French in Quebec, the Charter of the French Language and its territorial approach meant that a single official language was adopted. As a result, French made progress in the late 1970s and during the 1980s. After that, however, there came several judgments that had the effect of limiting the effect of the Charter of the French Language, which is also known as “Bill 101”, and striking it down in part. Since then, French has declined.
Why have there been so many judgments against the Charter of the French Language? As Prof. Brodie was saying, the Court Challenges Program was used to fund cases that led to judgments that struck down whole segments of the Charter of the French Language. This ultimately contributed to the decline of French.
I therefore propose that Bill be amended so that the program can no longer be used to challenge the Charter of the French Language and reverse the progress made by French. That would be logical. The 2021 white paper entitled English and French: Towards a substantive equality of official languages in Canada proposed that the federal government support French in the other provinces, as it has long done, and also support it in Quebec, rather than hurting it by funding challenges to the Charter of the French Language, for example. The amendment would be to that effect.
We could even go further to remedy this historic error. Funding challenges to Bill 101 like these was ultimately a historic error, so we might go further by proposing that actions in support of Bill 101 be funded, and this would help individuals who wanted to assert their language rights as provided in sections 2 to 6.2 of the Charter of the French Language. These are fundamental language rights. Obtaining federal funds to move forward would truly be a good thing, especially given that since 2022, with the new Charter of the French Language, fundamental language rights are now enforceable.
People really may bring proceedings to fill the gaps in the specific rules in Bill 101. I always offer the following example. Consumers of goods have the right to be served in French. In certain clothing stores in Quebec, however, the signs advertising clothing, particularly for children, are in English. No clothing is advertised in French. Could the right to be served in French, this fundamental language right of consumers, mean that clothing must always be advertised in French? We do not know, but it would be worth considering an action on that point being funded by the Court Challenges Program.
The purpose of this amendment would be so that someone could not challenge provincial legislation and certain groups of people would be able to use program funds to assert the language rights provided by provincial legislation, in particular the Charter of the French Language. The same logic should apply to Quebec's Act respecting the laicity of the State. Rather than challenging it and repeating the historic error surrounding Bill 101, the fund could be used to put into effect the right to secular public services provided by that law. That would really be preferable. It is what the amendments mean, fundamentally.
In addition, there are improvements to be made regarding governance. I found what Prof. Brodie proposed very interesting, in particular that various political parties nominate people to sit on the board that manages how funding is awarded.
We also think that if there could be even more Quebeckers—
:
You're promoting me to general when I'm a lieutenant, a baby professor.
I want to keep it simple. My view is that it would be a mistake to entrench the Court Challenges Program, the CCP, into statutory law, even through a private member's bill like Bill , because it's not appropriate for public money to support the program.
I have three basic reasons for this.
First, the way the CCP has been designed and implemented has ensured that it is subject to partisan contestation. The preamble of Bill partially acknowledges this by indicating the history of how the program was abolished and then reinstated, but what it leaves out is that it was abolished by Conservatives and reinstated by Liberals. In my view, this partisan contestation undermines the preamble's own stated aim that the program should be independently administered in a way that holds the government to account.
It's very difficult for a program that is understood, at least by one major political party, to be advancing the partisan agenda of another set of political actors to effectively hold the government to account over successive governments. In truth, overall, this threatens to mire Canadian courts in partisan contestation, which is something we want to avoid. We want to avoid politicizing our courts further.
[Translation]
Second, the Court Challenges Program was created to challenge provincial legislation, and [Technical difficulty—Editor] actually the courts whose judges are appointed by the federal government to strike down provincial laws. The risk it creates is that Canadian federalism will be eroded, and it is a particular threat for the Government of Quebec.
It should be noted that the program funded at least one of the applicants who is challenging Quebec's Bill 21 in the Hak case against the Attorney General of Quebec, and probably others.
[English]
Third, the very idea of the CCP is in tension with the charter statements program and the idea that the federal government and Parliament are themselves responsible and accountable for protecting the rights entrenched in the charter. The CCP partly outsources to unelected special interest groups the responsibility for ensuring that legislation complies with rights. If there is a human rights or language rights issue with Parliament's bills, then it is Parliament's responsibility to fix these issues before they become law. Indeed, in my view, that's what the charter statements program stands for: declarations about the consistency of bills that should be debated and taken responsibility for in Parliament.
All of these three reasons for objecting to the CCP and Bill are compounded by what both speakers before me have mentioned already: the lack of transparency surrounding the CCP.
The CCP claims solicitor-client privilege and does not reveal the names of intervenors and litigants that it supports. This lack of transparency is a big problem for those who want to defend the program and would like to see it entrenched in statutory law. If the supporters of the CCP wish to argue that Bill should enjoy partisan support from across different parties, then the first thing they should do is waive solicitor-client privilege and publish a comprehensive list of the interventions they find.
Since 2000, they have advertised only a select set of interventions and have not identified the intervenors in their annual reports, although you can figure out some of the intervenors by looking at the case and at who is an intervenor in them. The list that they actually publish is very select. First of all, this whole conception of solicitor-client privilege as an approach to transparency is contestable. Second, it's all waivable. The CCP can waive this privilege, and indeed there seem to be good reasons for doing so.
In truth, the 2016 report issued by the 2016 Standing Committee on Justice and Human Rights on access to justice recommended that the CCP waive this privilege and publish in annual reports all cases that received support from the program. That's recommendation 7 from that report. I'll note that this committee report is, in the words of the sponsor of this bill, one of the sets of recommendations that motivated the introduction of this bill. If we're going to take this bill seriously and the reasons for it seriously, you might want to take the other recommendations in that report seriously as well.
In my view, whatever we make of the political future of the CCP or the future of this bill, informed debate about its merits cannot really take place without transparency about the kinds of cases it funds.
With that, I'll conclude my remarks and wait for the questions. Thank you very much.
I thank the committee for this invitation.
I wish to first gratefully acknowledge that most of the work of the Court Challenges Program, like that of this committee, takes place on the unceded traditional territory of the Algonquin Anishinabe people.
As the program operates bilingually, I will be delivering these remarks in both official languages.
By way of introduction, I have been director of the Court Challenges Program since 2020.
[Translation]
The purpose of the Court Challenges Program, or CCP, is to provide financial support in test cases of national importance relating to constitutional and quasi-constitutional rights involving official languages and human rights.
The program therefore has two objectives.
The first is to help more Canadians access the courts in order to assert the rights guaranteed to them by the Constitution Act, 1867, the Canadian Charter of Rights and Freedoms, and the Official Languages Act.
That objective addresses the fact that the financial costs associated with conducting constitutional cases are often an insurmountable barrier to access to justice.
The second objective of the program is to contribute to expanding our collective knowledge of the scope and meaning of the rights it enables people to assert.
[English]
By funding test cases of national significance, we aim to provide courts with the opportunity to advance the state of the law and contribute to our public understanding of the meaning of charter rights in Canada.
Given that most of the cases funded by the CCP seek to challenge laws, policies or practices of the federal government, it is operated at arm's length. As you know, it is currently being administered by the University of Ottawa, funded through a contribution agreement with the .
However, it is important for the committee to understand that while the program receives administrative and infrastructure support from the university—and by this I mean things like IT, accounting, payroll and facilities—the program functionally operates independently, particularly with respect to case selection. The University of Ottawa plays no role in selecting, nor has any access to information about the cases that the CPP funds.
Applications for funding are processed exclusively by CCP staff. The decisions about which cases are funded are made exclusively by two independent expert panels—the official language rights expert panel and the human rights expert panel—who are appointed through a process that was previously described by Mr. Dendooven in his testimony.
[Translation]
The expert panels make their decisions in accordance with their frame of reference. In making those decisions, they are careful to abide by the program's eligibility criteria and objectives.
The CCP's frames of reference, eligibility criteria and objectives are published on its website.
To assist the experts in doing their work efficiently, the program's legal staff verify that the applications are complete. They also prepare initial analyses in order to identify any eligibility problems and situate the case submitted in relation to the existing case law.
[English]
Everything that touches on the funding applications we receive, including the deliberative work of the expert panels and the ongoing management of funded cases, is considered highly confidential. This is to uphold the established rights of any prospective or current litigant to litigation privilege.
Briefly put, litigation privilege applies to any communications created for the dominant purpose of litigation when litigation is contemplated, anticipated or ongoing. This kind of privilege is intended to safeguard litigants' privacy rights so that the parties can go about mounting and pursuing their case free of interference. It's not the only form of legal privilege that applies to the work of the CCP, but it is the one that encompasses virtually all of the information that we hold about the applications we receive and the cases that we fund.
It is because of litigation privilege that the reporting requirements of the program are structured in the way that they currently are. The program does not report on the identity of funding beneficiaries until such time as the case in question is completed and all remedies exhausted.
Thus, our reporting requirements are drafted in a way that ensures transparency while respecting the rights guaranteed by litigation privilege of those who interact with the program. I would just add briefly that they are their rights to privilege, not the CCP's, and it is not for the CCP to waive them.
This program, however, does report on its activities. In December of every year, the program publishes an annual report on our website in which we report on how many applications were received and funded, provide anonymized summaries of some funded cases and provide information about the financial performance of the program.
In addition to the information contained in the annual report, the program provides financial and operational updates to the Department of Canadian Heritage several times a year, and once a year provides an updated, albeit anonymized, list of all files handled by the program.
[Translation]
It will be my pleasure to answer your questions in the official language of your choice.
:
Thank you very much for having West Coast LEAF here today.
My name is Humera, and I use she/her pronouns. I am a staff lawyer working on the homelands of the Musqueam, Squamish and Tsleil-Waututh nations.
West Coast LEAF supports Bill , which would provide the Court Challenges Program with a legislative home. We also seek two amendments to further strengthen access to the guarantees enshrined in constitutional law and official languages legislation.
Our position on this bill arises from our decades-long experience advancing justice and equality for women and people who experience gender-based discrimination. We were formed in 1985 to ensure that charter rights, particularly section 15 equality rights, would receive robust protection. We have appeared before courts and tribunals in many cases to advocate for equality rights and protection from discrimination.
In our current justice system, all litigation is costly, and constitutional litigation is even more so. Going to trial as well as bringing or facing an appeal can be financially draining and cost hundreds of thousands of dollars. Developing and litigating test cases that seek to move constitutional law forward, especially on systemic issues, may involve several years of litigation, likely at three levels of court, and support from dozens of lawyers, staff and expert witnesses.
The program as currently structured caps funding at $200,000 for trials, $50,000 for appeals and $20,000 for test case development. This funding is a significant help, even if it only partially covers the total costs of litigation. Without it, accessing justice would be even more of an uphill battle.
The program is also an important funding source for public interest litigants, many of whom are non-profit organizations with very limited resources. In the 2022 case of British Columbia (Attorney General) versus Council of Canadians with Disabilities, CCD, the Supreme Court of Canada recognized the critical role that public interest organizations play in supporting access to justice by bringing cases on behalf of people and communities who face social, economic or psychological barriers in litigating cases on their own.
The program also funds intervenors who join cases as third parties to share unique perspectives with the courts. For decades, intervenors have made notable contributions to the development of constitutional law by ensuring that the perspectives of those whose rights and interests are impacted by a case are considered by courts and that legal decisions are informed by broader implications. West Coast LEAF has also received funding from the program to partially support the litigation costs of interventions.
While we support Bill in principle, we also recommend two amendments to bolster access to justice in constitutional and language rights cases.
First, section 2 of the bill should be amended to include language indicating that the program will support claims arising from federal, provincial and territorial jurisdiction. Presently, funding is only available for cases connected to federal jurisdiction; however, provincial and territorial laws directly affect the largest number of Canadians, and areas of law falling within provincial jurisdiction, such as family law or access to social services, often disproportionately impact women, people of marginalized genders and people facing other intersecting barriers.
The program must also include cases engaging provincial or territorial jurisdiction if it is to achieve its goal of supporting cases of national significance, which is the language used in the bill. Andrews versus Law Society of B.C., the first ruling from the Supreme Court of Canada on section 15 equality rights, was a case concerning provincial law. Similarly, the CCD case mentioned earlier in my remarks was also provincial in scope, but required the Supreme Court of Canada to decide legal questions concerning public interest standing. These cases significantly impact constitutional jurisprudence, but they may not have met the program's criteria for national significance as they did not squarely engage federal jurisdiction.
Second, the bill should be amended to clarify the term “independently administered” and to specify how independence from government will be secured. Litigation is an adversarial process, and cases brought against the government will necessarily run counter to government's interests. The bill must prevent the possibility of interference in funding decisions through the pulling or limiting of funding.
We understand that many committee members have expressed a wish for greater transparency and accountability, and we agree that the process of funding applications must be transparent and accountable; however, we caution that this must not come at the expense of independence and must balance concerns around preserving litigation privilege.
To conclude, by adopting Bill , this committee would be signalling respect for constitutional rights and the rule of law. The Supreme Court of Canada has stated that if people cannot challenge government actions in court, individuals cannot hold the state to account and the government will be or will be seen to be above the law. It also ruled that there cannot be rule of law without access to justice.
By enshrining the program in legislation, this committee would be supporting meaningful and consistent access to courts to check and balance government and to advance fundamental rights.
Thank you.
:
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. Was it meeting the objectives set out by the funding document? Was it serving the public interest in a broader sense?
I would say that this is particularly difficult in cases involving one section of the Charter of Rights coming into conflict with another section of the Charter of Rights. The government has, if I understand correctly, legislation pending before Parliament on online harms. That legislation—I don't want to get into the details, since it's still being debated—will inevitably end up in court, with both freedom of expression claims and equality rights claims. It's very difficult for the groups that are on the freedom of expression side to argue the case if they think in the back of their heads that there's a possibility that the equality rights arguments being advanced in those cases are being funded by the federal government when their arguments are not.
To those of us who are observers, that's the kind of transparency issue that I think goes beyond, and goes to the actual implementation of the Charter of Rights and the guarantee of constitutionally protected rights and freedoms in the country.
Thanks to the witnesses for being here to testify about the Court Challenges Program.
My first question is for Ms. Giles Samson.
A witness and some members of the Conservative Party talked about confidentiality and lack of transparency. Earlier, Ms. Jabir referred to important factors relating to confidentiality. I think there are some significant problems there.
Can you explain your argument regarding the annual report to the committee, and tell us about the suggestion that a parliamentary committee should choose the experts in order to avoid partisanship? In my opinion, it would be a colossal mistake to involve parliamentarians in selecting the experts.
Can you explain how the selection of experts works and how transparency is ensured?
:
I am happy to answer questions about transparency.
In my opinion, it is a question of striking a fair balance. There are three factors.
First, we have to share as much information as possible about the management of the program and we have to provide all the information we can.
Second, a balance has to be struck between that consideration and the rights established by the Supreme Court of Canada that allow social assistance recipients to maintain a certain degree of confidentiality in bringing their case, which preserves their ability to carry it through. In my opinion, that right, or privilege, should apply equally to people who have financial needs. We do not ask other people how they are paying to have their litigation resolved.
The third part of the triangle of transparency is the independence of the program. We have to be able to preserve the integrity and decision-making independence of the CCP, beyond the reach of public or political pressure. That is why the CCP has been administered by a third party. The independence of the program is strengthened when the expert panels are able to select the cases to be funded based solely on the eligibility criteria.
In my opinion, questioning their decisions does not respect either their expertise or their independence. We should note that there are seven members on each of the panels. That represents a diversity of views.
This brings me to Mr. Serré's question about how we choose the cases described as being of national significance: the test cases. That is really a question of expertise. It is necessary to know where a case falls within the case law and how it may clarify or further rights. I think it works very well because those decisions are assigned to experts.
:
Thank you, Ms. Giles Samson.
[English]
Mr. Brodie, you were the chief of staff for former prime minister Harper. You know this program. You said it was at arm's length earlier, but you were involved in the government here.
I'm a francophone from northern Ontario. You know that this program helped the Montfort hospital, the francophone hospital in Ottawa.
This program was also used for l'Université de l'Ontario français.
[Translation]
What do you say to minority official language organizations or individuals in Canada who need this kind of support? They do not have the necessary funds. The organizations do not have funds to take legal challenge all the way to the Supreme Court. They need a fund to ensure that language rights are respected in Canada.
What do you say to those organizations? The Conservatives abolished this program; you witnessed that. If a new Conservative government were elected in the near future, do you think it would cut this program a third time?
I admit that I would have liked to be able to have a bit more time. Maybe there will be another round of questions after this one. I think Ms. Thomas's proposal was really very reasonable. This is also an interesting subject.
Mr. Rousseau, I am really pleased to have you with us today. Thank you for accepting the invitation. I know you have an extremely full schedule, as do the other witnesses, undoubtedly. I particularly appreciate your being here, since you have done a lot of work on cases that involve the values, and even the unique challenges, seen in Quebec, particularly regarding secularism and the protection of French.
I would like you to tell me a bit about the connection between the court challenges program and the values that are dearly held in Quebec and that differ in several respects from the values in other regions of Canada. From your experience, paint me a bit of a picture of those challenges as they relate to the court challenges program.
Thank you for the question.
We know that the program really has been used several times, and unfortunately with success, to challenge the Charter of the French Language, which, as you know, is one of Quebec's most important laws when it comes to defending its distinctive character. So this program was created for that, to be used for that. We know this. It is documented. Not only has that weakened Bill 101, but there is also every indication that the subsequent decline in French is directly related to this weakening of the act, as a particular effect of the judgments resulting from actions funded by this fund. So this fund, in my opinion, is directly connected with the increasing fragility of French.
The same thing is happening with the Act respecting the laicity of the State. We have been informed that the English Montreal School Board, the EMSB, has received money from this program, and this suggests that the fund will be used to finance groups that already have a lot of money. The EMSB has funds with millions of dollars. It is very well subsidized.
So it is not just small not-for-profit organizations, NPOs, or individuals who are less well off who benefit from the program. The EMSB is very wealthy. Should the cases where the program can provide funding not be limited solely to NPOs or individuals? That is another question.
These two cases, secularism and French, clearly illustrate that a lot of the time, this program is used to damage Quebec's interests and distinct character.
As a lawyer who is often involved in cases where my clients are defending Quebec's distinctiveness, we see that the other parties opposing us and opposing Quebec's distinct character have access to this program, which is not the case for my clients.
Apart from the appearance of partisanship that my colleagues have rightly raised, there is a problem, and the concrete results make it clear that there is a bias against Quebec in the cases funded by this program.
:
I find what you are saying interesting.
I would connect it with what Mr. Serré said earlier when it was his turn to ask questions, when he was talking about the usefulness of this program, which made it possible, for example, to save Montfort Hospital in Ontario, and also the Université de l'Ontario français. It is not a bad program. It has its use. However, the way it is organized may make it easy, as you say, for it to be used by opponents of legislation enacted by Quebec's National Assembly, particularly those who take aim at protecting French and secularism.
I do not think this is an easy idea to apply, but earlier, one of the speakers proposed that there be representatives of political parties on the selection committee for members of the CCP's expert panels.
At first, I would have said spontaneously no, but I am thinking that this would allow for a kind of guard dog at the source, upstream, someone who could say that one or another case is flatly contrary to Quebec's values, or for any other reason, and it cannot be supported.
Do you think that could be a solution? If not, how could this program be supported, if we want to support it and at the same time also protect the values that Quebec espouses?
:
I think it is not a bad idea to include experts, including experts from academia, but that does not mean there cannot also be parliamentarians. It is not really a bad idea for there to be a parliamentary process upstream of the experts being appointed. At the National Assembly of Quebec, there are often appointments approved by a qualified majority, that is, two thirds of the parliamentarians, which means that it very often cuts across party lines. A similar process could be imagined for this committee.
The other possibility I raised is this. Hypothetically, if Quebec had special status and this program could not be used to challenge Quebec legislation, that would have to be taken into account in the appointment method. As I said, ideally, I would like this program to be used more for the defence or broad interpretation of Quebec legislation that grants language rights, such as Bill 101, or that grants fundamental rights, such as the Quebec charter of human rights and freedoms, or the Act respecting the laicity of the State, which grants the right to secular public services. Based on that, certain members of the committee, certain experts, could be appointed by the Government of Quebec. That would be another way to do it.
Ultimately, what is needed is transparency. It is fine to talk about national significance, but we do not know exactly how that criteria is interpreted by the experts. Having a better appointment method does not mean there is no need for transparency downstream.
I want to thank Ms. Jabir for joining us today and sharing her testimony.
I want to begin by recognizing that West Coast LEAF, which is almost 40 years old, came out of the struggle for gender equality in our country. Of course, we know it is very much connected to the fight for section 28 in the Charter of Rights and Freedoms. It is an organization that has been in this fight for a long time and is one that deals with many of the court challenges, whether on section 15 or 23, that the Court Challenges Program funds.
I want to go back to the Harper era, when the Court Challenges Program was cut.
Of course, many of us were involved in fighting back against that decision. I'm wondering if you could share a bit about what that meant for the rights of women, people living with disabilities, indigenous peoples and others who, for a number of years, did not have recourse through the Court Challenges Program. To what extent did that cut set us back as a country?
I think what's important for the committee to keep in mind as it makes its deliberations is that accessing the judicial system, for those in equity-seeking groups—indigenous communities, people facing disabilities or otherwise marginalized groups—is never a first resort. Often litigation is preceded by years of advocacy, including grassroots advocacy and engagement with legislators such as yourself, in order to try to bring forward the issues that are being experienced in these communities. Because of the cost of litigation, it is usually not the first resort for any of these groups or communities. Bringing forward cases takes considerable fundraising and efforts by average Canadians to try to build a community up around the issues that are important and need to be addressed.
I'd like the committee to certainly sit with this—that litigation is often a last resort to try to protect constitutional rights and create change. For those who need to access CCP funding in order to bring cases forward, it is usually a considered decision. They are bringing forward cases for which there is a strong rationale and often a long history of efforts to bring about change on issues of importance to the equity-seeking groups and to try to uphold those constitutional rights in a way that hasn't been possible to date.
I think it's very important for the committee to recognize that access to justice is fundamental. It must be available and accessible to everyone in a meaningful and consistent way. What the CCP offers is a small part of what the total cost of bringing cases forward requires.
Constitutional litigation is an evolving area, in which all cases that are brought forward have the potential to enrich and refine the laws, rights and entitlements of all groups. Certainly, our focus is on how to enrich constitutional law, recognizing that the cases brought forward and adjudicated by the courts have the potential to impact the public interest, not only for one group but also for many.
:
Certainly, some of the other parts of the charter not currently included are covered by criminal legal aid. We are able to see development on the charter with respect to those areas.
Our emphasis is on provincial and territorial jurisdiction cases because, as I shared in my remarks, although cases such as the Andrews decision and the CCD case may not involve federal laws, policies or practices, the outcomes of those cases have impacts across the nation for public interest litigants, for the development of constitutional law, and for how constitutional law is interpreted and applied not just for one group but also for everyone.
It is very important that the question on the table considers the evolution of constitutional law, the impacts it has on many groups and the development of the law. These are very challenging and important questions. One constitutional decision can have an impact on many others with respect to remedies available and how systemic issues are approached.
It is therefore very important that the question of what cases are considered is one that takes into account broader implications, including how constitutional jurisprudence is going to advance.