:
Good morning, everyone.
Welcome to our witnesses here this morning.
This is our thirty-first meeting of the Standing Committee on Canadian Heritage. We are televised this morning.
Pursuant to Standing Order 108(2), the study on the court challenges program is on our agenda today.
Just to let you know, our sitting today will be over at a quarter to eleven. We do have some other committee business to do for the last 15 minutes.
We welcome you here this morning.
Mr. Matte, perhaps you would like to introduce your delegation, and please give us your presentation, sir.
:
Thank you, Mr. Chairman.
I would first like to introduce a member of the Board of Directors of the Court Challenges Program of Canada, Ms. Bonnie Morton, and the Executive Director of the program, Mr. Noël Badiou.
I'd like to thank the members of the committee for having us here this morning for us to make a few comments about the program. I know that in the last few months, a number of things have been said about this program. You have received a lot of information, and a number of people have made presentations. So it's not necessary for me to go back over the whole history of this program and how it came into being.
I believe you have received a document that we prepared for you. There are just a few things that need to be said. For example, the concept of justice, in our opinion, necessarily includes access to justice. Having rights is not enough, you also have to be able to exercise them.
The Court Challenges Program is but one of these programs that the government of Canada and/or the provinces and territories support. Various kinds of funding programs ensure access to justice. However, this one was extremely important to all Canadians, particularly those in official language minorities and those in historically disadvantaged groups, including those in the Charter of Rights and Freedoms.
A democratic system involves majority rule. We understand that, but defending minority rights is the reason why there has to be a charter to protect those rights from the whims of the majority. It's important to uphold these principles in Canada.
When the program was abolished, the government said that it did not provide value for money. To date, we have not been told how it failed to provide value for money. No one has really provided us with any justification for this decision. In fact, we were never even notified that the program was under review, nor have we ever seen the findings of that review.
Suffice it to say that in 1997 and 2003, reviews of our program were conducted and the findings were quite clear. Both times, it was found to be effective and accountable, providing Canadian taxpayers with value for their money. Between 2003 and 2006, I'm not exactly sure what happened or where the idea came from that the program was no longer providing value for money in Canada.
Canadians have made remarkable progress in terms of rights, and I would like to mention at least a few of those results. For Canadians in official language minority communities, this program has made possible major changes that never could have been accomplished without it.
In its existence, over 1,200 cases have been heard thanks to this program, and one third of them have had to do with language rights. There was, for example, the Doucet-Boudreau case in Nova Scotia, involving the section 23 Charter education rights of the Acadian minority. This case reached the Supreme Court of Canada, which upheld the trial decision permitting more effective oversight of the government's implementation of these rights. Even when the government decided to give them the right to have their own schools, it was taking so long that the judge reserved the right to go back and see whether the government had indeed respected the Charter. That was an extremely important decision because it enabled the court to monitor the implementation of official language minority rights.
In the Montfort Hospital case, you've all heard about that one, there was further elaboration on the recognition on an unwritten constitutional principle regarding the protection of minority rights. When you have things for the minority, you really have to consult that minority, and when you take away an institution, you really have to consider the impact that could have on the vitality of the community.
Finally, there's the establishment of adequate facilities equal to those of the majority language community. There are now schools and school boards in all provinces and territories of Canada. When I started teaching, there wasn't even a French-language school board in Ontario. Since then, we have seen all over, in all provinces and territories, significant change.
There is still some territory to be explored in the area of minority language rights, and this can be seen now, for example, with the Caron case in Alberta and the education case in the Northwest Territories. It's important for cases like those to make it all the way up to the highest court, the Supreme Court of Canada. It's a matter of equality rights.
I would ask Ms. Morton to say a few things to you about cases primarily involving equality rights.
:
I'd like to start off by saying, in case nobody is aware of it, that this is the 25th anniversary of the Charter of Rights and Freedoms. For that Charter of Rights and Freedoms to become a real, living document, we actually have to have access to it to use it as a domestic remedy when our constitutional rights are being violated.
Since 1985 we've had the right to protect equality rights. Section 15 of the Charter of Rights and Freedoms provides the guarantees for equality before and under the law for all people in Canada. This guarantee isn't just for those who can afford to go into the courts; this guarantee is also to protect disadvantaged groups who probably wouldn't be able to get there. Aboriginal, disability, and women's groups are just a few of the groups that have actually accessed funding from the court challenges program. This funding made it possible for these disadvantaged groups to have access to justice and to ensure that their equality rights were protected.
I'd like to make reference to three cases that really show how they've actually expanded what the concept of rights is. I think you also need to understand that if we're going to have rights in the Charter of Rights and Freedoms...for it to be a living document, it has to grow with us as a society. That means our rights will also grow, and that's what the Constitution protects.
There's the Kevin Rollason case--and if I'm pronouncing anybody's name wrong, I apologize. He was the father of a young girl who was born with Down's syndrome and had life-threatening cardiac disease. He successfully challenged the employment insurance program's failure to provide full parental leave benefits to parents of children requiring a long-term stay in hospital.
Then there were the Misquadis. They were off-reserve, rural, and urban aboriginal communities that successfully challenged their exclusion from federal aboriginal human resources development agreements designed to allow aboriginal communities to create and implement employment and training programs to ensure job stability, even for those who did not live on reserve.
Then there was the Michael Hendricks and René LeBoeuf case. They were a Quebec-based same-sex couple who successfully challenged section 5 of the federal harmonization act, which declared marriage to be between a man and a woman only in Quebec.
I'd like to say here and now that these cases and many like them that received court challenges funding actually helped to define the definition and expand the definition of what equality rights really are in this country.
I'd like to end by saying that our rights become stagnant if we have absolutely no way of ensuring that we're being protected through our Constitution, that way being the Charter of Rights and Freedoms. As soon as our rights become stagnant, so does that document called our Constitution, the Charter of Rights and Freedoms.
I'm here to ask each and every one of you to ensure that our rights and our Charter of Rights and Freedoms don't become stagnant in this country and to reinstate the funding to the court challenges program.
A number of questions have been raised by witnesses before this committee, and a number of our comments are included in our brief. I would like to make a few comments.
With respect to the concern that only one side of an issue is funded by the program, we should remember that the original intention in creating the CCP was to provide funding for test cases under the equality and language provisions of the Charter and Constitution.
These equality and language provisions, by their very nature and wording, are meant to expand these fundamental rights. The idea is for everyone to be equal before and under the law and also to have access to official language services. The very notion under these provisions is inclusiveness; challenges under these provisions would naturally seek to expand the number of people who can participate. This is what has driven the funding decisions under the program. Allusions to the funding under the CCP as being too narrow a portal are exaggerated, as the CCP is about granting a voice to those who do not have one in the first place. It is not about exclusion, but rather about providing a means of access and justice.
In reply to the concern that only one side of an issue is funded by the program, it is important to remember this purpose: the program was meant to provide access to justice for a specific demographic; anyone opposed to the challenge would in fact be supporting the government, which has the ability (and has done so in the past) to bring the perspectives and arguments of these supporting groups before the courts.
The program is meant to provide a balance and help to level the playing field in the sense that it provides funding to groups and individuals who would not otherwise have a voice as the government is not representing them.
It would be counter-productive to support cases that would seriously jeopardize the rights of a group that is supposed to be protected by equality and language rights. Far from being just a matter of differing visions of equality, as our critics claim, the program refuses to fund cases that could likely undermine the equality and language rights of these protected groups.
The second issue I would like to raise is why governments should fund individuals to launch court challenges against the government.
The concept of justice, as Mr. Matte said earlier, necessarily includes access to justice. And as Prof. Lorne Sossin of the University of Toronto has noted, access to justice requires resources. Ensuring adequate resources for the people of Canada to obtain access to the courts is therefore essential for promoting justice and creating a sound civil society.
Several government-funded litigation programs exist, all based on this principle. For example, there's the Test Case Funding Program of Indian and Northern Affairs Canada, the Aboriginal Rights Court Challenges Program of the Northwest Territories, legal aid programs for criminal cases involving incarceration, legal aid programs for civil cases, primarily family law, and other special provincial legal aid programs aimed at assisting disadvantaged individuals, related to provincial issues.
So there are already government-funded programs that help Canadians challenge certain laws or government practices. The CCP was but one of such programs. It focused specifically on official language rights and equality rights under the Charter and Constitution.
The CCP was meant to provide access to justice for Canada's historically disadvantaged—those who are most vulnerable to marginalization and exclusion from full participation in Canadian society—who are trying to claim their full and proper place in Canada. Without this access to justice, these disempowered groups and individuals will no longer have a voice in their efforts to seek equality and recognition.
[English]
The final point I'd like to address is with regard to conflict of interest. The court challenges program of Canada is keenly aware of conflict of interest. Over the years it has reviewed and revised its conflict of interest policy. Many members of the board, panels, committees, and staff are lawyers and are accordingly governed by their respective law societies and are subject to strict conflict of interest rules. Their current policy reflects a very high standard for ensuring that no one on any of the CCP's committees can receive either a direct or an indirect benefit in the use of public funds. We have attached the program's conflict of interest policy for your information, and we'd be happy to answer any questions about it.
I would add that the structure of the court challenges program is such that the decision-making panels are independent of the board. The board looks after the administrative aspect of the program while the decision-making panels look after the actual funding of applications. The board is not privy to the applications received, nor is it to the decisions that are made.
Further, the members appointed to the panels are chosen primarily for their expertise in equality or language rights. Secondary considerations relate to having panels that are diverse and regionally represented. I can add that regional representation and diversity are also looked at in composition of the board.
As an additional form of accountability, the court challenges program regularly reports the names and biographies of each member on the board, panels, and staff, both in its annual reports and on its website. This means there's an increase in transparency as the court challenges program wants to fully account for everything it is doing and who is doing it, which ultimately is for the benefit of Canadian society as a whole. While not everyone may like the court challenges program, it has resulted in providing greater equality and official language rights services to Canadians.
:
Thank you, Mr. Chairman.
First of all, I'd like to congratulate Mr. Matte and his two colleagues here this morning on the quality of the document we have received. I had time to skim through it and I must say it appears to provide exactly the explanations we wanted of the operation of the Court Challenges Program, its structure and the need for it in the broader context of a healthy democratic society. I'd like to thank you for the quality of this document and I hope my colleagues will think to ensure that it's included in a report to the House, because it would benefit all parliamentarians to read it.
I'm going to ask three short questions in order to clarify certain things once and for all.
When the Prime Minister and one of his ministers stated their reasons in the House for cancelling the Court Challenges Program, they said they were sick and tired of paying for Liberal lawyers. When asked whether the political affiliation of the lawyer they chose was a factor, every witness has said no.
That's also what you seem to be saying in your brief, but could you confirm that the lawyers' political affiliation was in no way a factor as far as the Court Challenges Program was concerned?
So I'm satisfied, Mr. Chair, that the reason given by the Prime Minister was bogus and that the notion of cancelling the program in order not to fund Liberal lawyers is indeed a fallacy.
The second area is a matter of conflicts, and those have been raised during the hearings. In particular, I believe Madam Morton mentioned one of these sources of conflicts.
You were a member of one of the agencies that received funding and were involved in some way, shape or form with the court challenges program. There was a hint that you might have been putting yourself in a situation of conflict. Would you care to comment on that?
:
I definitely would like to comment on that.
I'm a member of a number of organizations. The organization that actually gave the presentation was the National Anti-Poverty Organization. I have been, in the past, the chairperson of NAPO. I am still a member of NAPO, a paying member because I've grown up in poverty, I still have family living in poverty, and I support the initiatives of that organization. I understand that under our Constitution I have the right of association, and that's protected.
I guess what I'd like to do is to address what was said.
Mr. Warkentin, the only thing that was actually truthful in what you said was that you had not met me. You don't know me. You put an attack directly on my integrity and my honesty, and you left that impression with the public. These are public hearings, and I have what you said right here, sir. I think it's unfair. If you're looking at the future of an organization, you don't attack the people within it unless you actually have proof that they have done something wrong. And you don't even assume that there is a possibility that they have done anything wrong. I think we all know what the word “assumption” means and can mean.
I would ask for an apology for the impression that this has left, because there's no way that I would ever step over the bounds of conflict of interest with the court challenges program, or any other program that I'm associated with in this country.
The criteria for eligibility for funding under the Court Challenges Program are spelled out in the contribution agreement we gave you a copy of. The program is intended for historically-disadvantaged individuals and groups as well as official language minority communities.
The two aspects the funding criteria are based on, under the Charter or Constitution, are equality and language. The requirements are as follows. Applicants have to be individuals or groups. They can't get funding for cases that have already been brought before the courts. In addition, these individuals or organizations have to describe in writing their financial need. Finally, we cannot fund cases before the Canadian Human Rights Commission or the Office of the Commissioner of Official Languages.
[Translation]
Thank you for the presentation you gave this morning.
I represent a region with a significant Franco-Ontarian population. As an anglophone, I know that minority rights were not acquired due to the efforts of the majority. Language rights and French schools were obtained because minorities fought for their convictions. And that fight is ongoing.
[English]
And I think this principle, to me, is at the very heart of the discussion we've been having here in terms of the conversation around the table.
The principle that has been raised by some of my Conservative colleagues and some of their witnesses is that if we allow the principle that minority rights need support to be enacted, to be defended, to be made real, that somehow that takes away from the rights of the majority. In other words, if we're going to have a court challenges program, then let's ensure that every single person, regardless of race, creed, or financial ability is able to access it. Otherwise, the few minority groups that do access these rights somehow have an unfair advantage over the majority. From the discussions we've had with witnesses, it seems to me that it strikes at the very heart of our notion of a Canadian system, in which we do recognize the value of certain rights that have to be protected and fought for.
One of the issues that came up was language rights. Again, in my region, there is the fight we've had for proper francophone services. Some of our witnesses have challenged that notion. Maybe it's unfair that we have certain language rights identified. What about, for example, the issue of Korean immigrants coming here? Why shouldn't they have the same rights?
I'm wondering if you think that this attack on the court challenges program is actually part of a broader view of how we should monitor rights in Canada and whether the attacks we've heard on court challenges--that it was conflict-of-interest-ridden, that it was going after crazy special interest groups, the kind of stuff I heard on talk radio--are actually part of a much simpler attack, which is the notion that certain minority rights need to be protected in this country in order to maintain the sense of what we have as a Canadian society.
:
You have asked a question that is quite broad and you have asked for a generalization of what we're doing. Basically, we have to realize that there are rights that have been recognized by the charter, and this has value for Canadian society. I would even say it probably makes us stand apart from most of the rest of world. I go to Africa all the time. There are lots of constitutions, beautiful words, but nothing is respected over there in many, many countries. We saw it in Guinea recently.
If we're going to have rights, there has to be a means to ensure that these rights are not only protected but that they are clarified. In 1982, when the charter was created--let's talk about language rights--minority language rights were recognized in education. There was not one school board outside the border of Quebec that was for francophones, and this was put in.
Now I'm asking you, what does the fact that there are school boards in Canada now, French language school boards, in British Columbia--where I was Monday--or in Ontario, or elsewhere in our country, take away from the majority? What does the fact that there are French language schools take away from the majority? What does it take away when you recognize that aboriginal women who are off reserve have certain rights? What does it take away from the majority?
What it gives is the potential for all Canadians to participate as much as possible in the growth of this country. And when you allow Canadians, through the exercise of rights, to do this, I think we all get better. We get to be a better country and a better welcoming country. And that's why people are clamouring to get into this country, because we have those rights. Those rights are protected and clarified. We need a means to ensure that this is going to be a living document and that it will grow with our Canadian society.
:
One of the other arguments that was laid out for us...well, we had two variations on the same argument. One came from the former Treasury Board minister, our new environment minister, Mr. Baird. He said we should not be paying money so that people can challenge government decisions. That was the very basis of his argument.
The argument we heard from, for example, our friends at REAL Women is that it's Parliament, not the courts, that decides the rights of people in this country. They laid out, as an example, their firm, undying opposition to same-sex marriage rights. I would think they would actually probably feel very comforted now that Parliament has twice voted to recognize those rights. Perhaps their concerns might be alleviated, in that Parliament has agreed on those rights.
On the question of whether the courts need to intervene to protect rights that Parliament is either unwilling to recognize or unwilling to put into law and practice, can you comment on how you see the role of the courts in having to defend minority rights in the vacuum of leadership at either parliamentary federal or provincial levels?
:
First, let us say that we are Canadians. As Canadians, we value the Parliament of Canada and the rights and the powers it has to make laws. That's why we have things like the Charter of Rights and Freedoms. If we had no parliamentary system and no way of ensuring that these types of protections or these types of basic laws were to be made, if the Parliament had not been there, it would not exist today. So Parliament did the right thing. The parliamentarians, the MPs at the time, did the right thing by enacting such a basic law of the land.
But a law, as you know, cannot encompass every application in the field. It usually is a very broad knowledge. It gives rights and it gives concepts, and then people have to apply it, either through additional legislation, through regulation, or through application by civil servants or by other authorities.
When you get to that level, the application is an interpretation of what the basic law of the land, the charter, says. We certainly believe, as members of the board and as a program—and I think most Canadians believe this—that it is appropriate to go and check whether the application that was done of a particular right that was recognized is appropriate and well done.
Of all the cases that we have supported in the courts—as I said, about 1,200-something since our program was put in place—we've lost cases. People lost cases. But that's fair, because at least you know that in those particular cases, those applications were rightly done by government or by its agents. In other cases, the applicants won because things were not done properly or they could have been interpreted in a different fashion. That's why we have courts: to clarify these notions when we apply constitutional rights or any other application of Parliament.
We do have a basic respect for Parliament to make and enact laws. Somebody, somewhere, has to interpret, though, and these things we should be able to challenge.
My thanks to the three of you for appearing before us as witnesses.
Before I go on to my comments and questions, I do want to correct something that I believe was stated by Mr. Badiou in response to a question from Ms. Bourgeois on whether REAL Women had ever applied for funding under the court challenges program. I believe you said categorically no. In fact, we have just confirmed with that organization that they applied on four occasions, in 1989, 1990, 1991, and 1992, so what you said was incorrect.
:
I just want to make sure that there is no misunderstanding as to what we're dealing with. There are organizations that did apply and were refused—I think we've all accepted that's the reality of it.
What I'd like to say, too, is that for me the issue isn't a matter of taking away from the majority. I don't think that's the result of a court challenges program. So, Mr. Angus, hopefully that reassures you as to my position on that.
I think when you review the evaluation that was done in 2003, stakeholders who were complaining about the program raised two issues. One was the issue of balance and even-handedness.
I want to go back to the actual statement of purpose. When you refer to the executive summary, it states:
The main purpose of the Program is to clarify certain constitutional provisions relating to equality and language rights.
The word “clarify” is generally quite broad. It would include not only an expansive interpretation, it would also include a restrictive interpretation of the charter. But as the program morphed, it became something that focused almost exclusively on promoting and expanding charter rights.
There are many Canadians who have great difficulty accepting that only one side of an argument before the courts should be funded by a government, especially if both sides of the argument don't have the financial wherewithal to be able to carry a fight to the Supreme Court of Canada.
So that has been one of the objections, the other one being a perceived conflict of interest, which has been referred to in earlier discussions today.
I want to state that there is a difference between perceived and actual conflict. I don't believe I've ever made a suggestion that there was an actual conflict. However, there are those who also state that perception is reality.
For those reasons, I think there is some justification for Canadians to be concerned. The irony of it is, had there been balance and even-handedness in how the applications were handled and in how the program was delivered, to perhaps also provide funding to those who were promoting a more restrictive application of the charter, perhaps the program would still exist today.
Let me get to my questions.
I think all of you have read the evaluation, correct? And you're aware of the concerns that were raised by stakeholders. I would admit, many of the stakeholders, of course, supported the program, but there were significant numbers of stakeholders who had serious concerns with it.
In your discussions with those who fund the program, which ultimately is the federal government, did you ever raise these concerns with the government, that perhaps there should be a more balanced approach to the funding arrangements that were being made with organizations that were applying for these funds?
:
There is a lot to your question. I'll try to cover as much as I can. My colleagues can help me on this one.
First of all, speaking of perceived conflict of interest, anything can be perceived as a conflict of interest. Even MPs can be perceived to be in conflict of interest when they make decisions: will this bring me support in my area; will it give me support to be re-elected? When you look at things, anybody can be perceived to be in a conflict of interest.
I have been here defending francophone rights practically all my life. Does being the chair of the board mean that I'm in a conflict of interest because I'm still promoting minority language rights in this country? Everyone can be perceived as being in some conflict of interest.
The important question is whether a person is in a conflict of interest. That's where people get into trouble. I can tell you that we check this very much within our organization, to make sure that nobody is in a conflict of interest and, as much as we can, is perceived as being in a conflict of interest. But you cannot stop the judgments of other people when they look at a program like ours; it's practically inevitable.
As to even-handedness, let us remind ourselves that we are never in an even-handed situation, because when people we fund go to the courts, they go against the federal government or one of the provincial governments that is using a huge amount of resources to thwart, stop, or put all kinds of hurdles in the road of the appellant seeking to get a clarification of their rights.
So even-handedness is a very unfair thing. If it were in place, then we would ask to get as much in the way of resources for those people who are appellants as the federal government is allowing itself to use. We see it right now, for example, in the court case of Caron in Alberta, where the provincial government is putting all kinds of hurdles in the road of Mr. Caron because they know the program is not going to exist anymore: let's make sure he has no means anymore to challenge the government in its application. That's one side; it's not even-handed on the side of the appellant.
As to your next question, related to whether we talked to the government about extending the program, no. We did not ask the government to please give us more money so we can fund REAL Women, for example, if that's what you're asking. The answer is no, we did not ask that.
What we're looking at in terms of the program is not a restrictive application of the rights. That's not our job. Our job is to see whether we can clarify and expand the rights of Canadians by the interpretation of the laws you have adopted. That's what we're doing.
If the federal government believes very strongly in what you've said, then create a program that is going to give money to REAL Women and other groups that are going to do this, or charge us with doing that too and give us double the money, and we'll give money to REAL Women to go on the other side, if that's what you believe in. But that's not the job that was given to us.
:
Thank you very much. I'll try to be concise.
On the question of the evaluation, it's quite clear there was a reference to the executive summary. The executive summary in its conclusion said quite clearly that while many individuals expressed the desire to have the CPP expanded, that wouldn't be the most efficient way to deal with what the court challenges program was designed to do.
One of the people on the independent review of the summary was Justice Gérard La Forest. I spoke to him this morning to revisit the issue and he continued to hold that in fact the court challenges program was operating the way it was supposed to, and the evaluation is quite clear on that point.
I think it is a larger issue. I'm going to agree with Mr. Angus. This is ideological. At the end of the day, just speaking to the question of conflict, if in fact holding a prior position disqualifies you from making a decision, then I would suggest this court challenges program didn't have a chance.
I would refer you to Ian Brodie, who I think holds some prominence with the government. They doled out millions to radical organizations and urged them to start charter challenges that targeted traditional Canadian values and laws. My sense is that the court challenges program was dead on the arrival of the new government if in fact you hold the position that a previously existing position disqualifies you from making these kinds of decisions.
More than that, the Treasury Board chairman at the time said it didn't make sense for the government to subsidize lawyers to challenge the government's own laws in court, which shows a painful misunderstanding of what the court challenges program is about, or, for that matter, even what the charter is about, because then the Prime Minister went on to say that they didn't intend to introduce any unconstitutional laws. That isn't for the Prime Minister to decide; that is for the court to decide. That's what the charter is about.
Given that the Prime Minister of Canada does not seem to understand the relationship between Parliament, which created the charter, and the court, which interprets the charter, this is a sad day for democracy and minority rights in Canada. The court challenges program is a victim of that ideology. I don't think there is anything more to it than that.
In terms of the question of whether or not the applications were deemed unacceptable by the court challenges program by virtue of who the organization was, as against whether or not the organization was actually acting consistently with the mandate of the court challenges program to challenge the government on an unconstitutional decision in their minds--and that's what the court challenges program was designed to do--can you confirm for me that this in fact was the reason that somebody who would come forward with an application would be denied? It wasn't because of who they were or what argument they put. It was whether or not they in fact were challenging a law of the government in the name of the charter.
:
To kind of build on that, before the Canadian Charter of Rights and Freedoms, we had the British North America Act. With all the international agreements Canada had started entering into, it was no longer a domestic remedy because it didn't protect the obligations Canada made to our international partners through international law. So that's where we started to look at how we changed it.
We came up with the Charter of Rights and Freedoms, and it has been pushed at the international level over and over again by our government, as a way of showing that as committed partners within international law we are protecting the rights of even the most vulnerable in our community.
I was in Geneva in May and presented before the economic, social, and cultural committee At that time, our government stood proudly before that international body and supported having the court challenges program as a way to ensure protection for the most vulnerable in this community and country.
What went wrong? Where was it no longer valuable? That's my question.
:
Thank you, Mr. Chairman. I have a comment and a question. My comment follows what Ms. Martin said.
Earlier, I referred to three conventions to which Canada is a signatory, that is, two conventions and a report which Canada accepted. I would like to come back on that subject for the next few minutes. Indeed, Canada made a commitment before the Human Rights Committee, and the report of our witnesses mentions this in an international context. I would like to remind you that Canada signed on to the report, the International Covenant on Civil and Political rights, and it is extremely important—in any case, it was extremely important—for Canada to have been a signatory. By signing that Covenant, Canada was officially recognized as being an advocate for minority rights and human rights in Canada.
There is also the Convention on the Elimination of All Forms of Discrimination against Women. Canada is also a signatory to that convention. Canada was never shy about telling the world that it was one of only 20 countries which at the time signed on to this convention. I believe that Canada would lose a lot of credibility if it eliminated its Court Challenges Program, since its is thanks to the Charter, and to the covenant signed within the framework of the convention, that several feminist groups in Canada were able to uphold their rights.
Third, there is the Erasmus-Dussault Report. Last fall, the minister responsible for aboriginal communities told us that he agreed with the Erasmus-Dussault Report on native communities and that there had to be changes. He promoted the report. Canada would look rather foolish if it abolished the Court Challenges Program, since this program could help our native communities.
I will now move on to my question for the witnesses.
In its 2003 summative evaluation of the Court Challenges Program, the Corporate Review Branch made a recommendation which I find extremely important. It is recommendation six, which says that, in the name of transparency and accountability, if the program were to be renewed, it should include a greater exchange of information between the Department of Canadian Heritage and the organization. The program's detractors told the committee all kinds of stories and they do not seem to be aware of how things work within your organization.
First, don't you think there was a communication problem? Second, don't you think that it would be to your advantage to appear more often before the Canadian Heritage Committee to present reports, which would have perhaps allowed us to support you even more? Do you think that more could have been done in that regard?
:
I will give you two answers. Firstly, it is certain that if you were to invite us more often, we would be more than happy to accept. We have absolutely no concerns over the organization's transparency.
Secondly, all those wishing to make an application will find information in our documents and on our website. Anyone with concerns, or those who simply happen to fall upon the website, will be able to access all relevant information on the Court Challenges Program, including information on criteria, procedure and eligibility. The website also posts a few cases. Most cases can be found on the Internet, since they are also included in our annual reports.
As you know, all communication requires two parties: the communicator and the party receiving the communication. Mr. Fast is right, and let's not try to hide it, there are groups in Canada that are not the least bit interested in developing Canadian law in relation to the Charter. I must come to terms with the following fact: there are people who are against broadening rights, clarifying the rights of certain underprivileged groups, and those people are also a part of the Canadian spirit. This is why we are Canadians. I accept this fact, but blame cannot be placed on the program because there are groups who want nothing to do with it.
I think it's important. Mr. Fast has suggested that there is a perception in the Canadian mind that there's something untoward here, or it's a perception he acknowledges. I would suggest that, by virtue of the time he's taken to make those connections, he's not alleviating the perception. He may be adding to the perception.
I would like to make something very clear so that Canadians watching this would not allow themselves to be drawn into that. For instance, the members opposite are familiar with NSERC or SSHRC. These are federal research granting agencies, with huge budgets. The panels that decide who gets the research money are made up of academics who work within various universities in Canada, and they make decisions all the time about who is going to do what research. I would suggest that we shouldn't hold the court challenges program panels to a higher standard--or perhaps the government has some plans for NSERC and SSHRC and the medical research agencies.
The reality is that in the universe of people--and I think yesterday, when we talked about the CBC, Mr. Fast even referred to the fact that when there is the universe of people who are specifically engaged in this exercise, those are the people we call upon to help us make decisions about these exercises. This is that universe. And to deny that universe the opportunity to make decisions because they've committed their lives to it would be a terrible denial of access for these people.
I just want to make the point again for the purposes of the perception of conflict, which is I guess what is being proposed. The reality is that there are all kinds of agencies where people are big enough to make decisions that they believe are right, and they're not motivated by self-interest. I think we should have greater access to post-secondary education for university students. I've got two kids in college. Surely that doesn't disqualify me from holding that position.
:
I agree totally with you when you talk about the unfairness of groups not having access to justice. I think that's why we're here. I totally agree with your last comment on this. I think you should make sure, as a representative of the government, that you carry the message to the Prime Minister and to the heritage minister and the justice minister that you believe people who seek justice should have access to justice. I think that's an important statement.
First, just to set the record straight, no member of the board represents another organization. When we are on the board we are individuals; we're not there as representatives of an organization. Some of us may belong to some organizations, but we do not represent them. That, I think, is an important distinction.
Second, when you say there are lots of Canadians who find it difficult to believe we should have these types of programs, I would refer you to, for example, the Premier of Newfoundland, who said you should reinstate the court challenges program. Every minister responsible for francophone affairs in the country, whether in Alberta, British Columbia, or the territories has requested that the government reinstate the program.
I don't believe there's a huge amount of conflict of interest within our organization, but if that is the problem, if that is the problem for the government, solve the problem. Do something about it, but please make sure that people have access to justice. If it's your belief that there's conflict of interest—and I don't believe it and I totally disagree with that argument—please reinstate the program and put it in a fashion that you believe is appropriate so that people can have access to justice. That's the real issue here.
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I'm very pleased we've had this opportunity today, and that it's televised, because I think it has clarified for many people the fundamental issue we're dealing with.
When we began this, I was trying to understand the Conservative point of view, and we heard first of all--from the Prime Minister--that it was a Liberal lawyer slush fund, and that was proved to be a falsehood. We've seen this relentless attack from Mr. Fast on conflict of interest, which I think hasn't been shown, but Mr. Fast has very much clarified the Conservative view here, and I appreciate that he has managed to do that.
The heart of the argument I'm hearing from him is that certain groups believe in a restrictive notion of rights, that certain groups want to test the limit of minority rights, to take away rights, to exclude people from rights, and because they can't access your fund to go after minority rights, they're somehow left out in the wilderness, and this is somehow unfair. We had the example of our friends from REAL Women. It turns out it has been 13 years since they made an application to a fund that no longer exists. It wasn't your fund, and I was thinking 13 years is a long time to lick your wounds when you're out in the wilderness Mr. Fast is talking about.
This is a fundamental issue we're dealing with, because the notion being put forward by the Conservatives puts civil rights jurisprudence on its head. What they are saying here today is that unless you allow groups from the majority, who can test and take away rights from a minority, then you should not allow the minority to have access to defend those rights. That seems to be the fundamental argument we have heard here. That seems to be the entire attack. I think, in a subtler way, it was explained by the Treasury Board minister, who said it's not wise government policy to provide money for people to test government, to test the Conservative government's laws.
This will be my last comment on the court challenges program. I think we are dealing with a fundamental view of how minority rights exist in Canada, one upon which we have based this jurisprudence for years, and it is under attack from a viewpoint, and what the attack is has been very clearly articulated.
I'd like to hear your viewpoint on the need to maintain the notion that government has a fiduciary responsibility to ensure that minority groups have the ability to ensure they can access rights that theoretically are proclaimed but sometimes not enacted in law.
:
I'd like to start by saying that democracy in this country means more than putting a check mark on a ballot once every four years. I take my democratic responsibility and my rights quite seriously, and that's why I do the work I do, through the United Church of Canada, as well as with every low-income and grassroots organization and equality-seeking group I'm involved with.
It is our right and our responsibility to use that Charter of Rights and Freedoms, the Constitution, to ensure that all our constitutional rights are upheld and not being violated.
Can our government make a mistake when they bring in a law? They're not infallible, and I don't think it's done intentionally. As a woman who over the years had to try to fight for rights.... If women hadn't fought for their rights and taken their democratic responsibility seriously, would you women be around this table today? Would all of us women have any voting rights? I need to ask that question. If we hadn't taken our democratic responsibility seriously.... To take it seriously in this country today requires having some funding to access domestic remedies. That's what court challenges is about, and the funding, and I thought we were here at this table to talk about the truth of the program, not to perpetuate false perceptions.
So I hope what comes out of all these hearings is the truth.
:
In terms of the money that we're talking about here, it's non-existent. Where Mr. Fast is trying to create a sense of a beneficiary conflict is in the sense of those who benefit from the decisions that may flow from the court challenges program. And in that case, I'll say
mea culpa, Mr. Chairman. I'll say
mea culpa. I am in conflict because I've benefited personally because my rights as a francophone, a minority in Ontario, are now better defended because of the court challenges program. This is a benefit that I have, and I don't think there's a problem with that. If Mr. Fast has a problem with that, he should say so.
In terms of the mechanism, if he has a problem with, essentially, peer evaluation, which is what we have here, then he should also bring forward and question the Canada Council's methods, as another example to the one that my colleague, Mr. Scott, has given, for allocating public money. For the Canada Council, it's peer evaluation that is given. This is a very similar concept that we have here. This concept that he's trying to perpetuate, or enhance the conflict about, is just non-existent, and I wish we could get off that.
The other thing I think I need to say here is that I don't sense from my colleagues on the opposition a great deal of angst when it comes to linguistic rights. I didn't sense through the witnesses that we, on this side, convened a great deal of angst when it came to the rights of seniors, people with disabilities, or aboriginals. The witnesses who they suggested and where I felt some angst from their side were in matters dealing with sexual orientation and same-sex marriages in particular.
Are we going to scrap the entire....? It's not “are we”; this government has scrapped the entire court challenges program, in my opinion, because of the government's hang-ups with matters of sexual orientation. And that's a shame, Mr. Chairman. None of the other explanations we've had make sense.
I'd like to ask the parliamentary secretary if he would be prepared to try to find out if there is a review.... Well, there is a review. That's what the government said they did. Can we get that review, Mr. Chairman, in front of this committee so we understand on what basis, if it's not what I'm proposing, the government decided to scrap the court challenges program?
I'd like to close as well by saying, first of all, that there's no angst on the part of this individual here on any of those rights issues. I will defend them to the hilt.
The issue is, are we excluding some in our society from having their voices heard when it comes to interpreting the charter? The suggestion that somehow we're excluding people from funding who wish to take away charter rights is totally false. We're talking about being truthful here. That's not what the case is.
The issue is that these individuals believe in a more restrictive application of the charter. And from time to time the courts apply a more restrictive approach; at times they apply a more liberal approach to the interpretation of the charter. That's all these groups are asking for, that there be fairness, even-handedness, and balance in how the funding is allocated.
I've never suggested there's an actual conflict of interest. What I am saying is that the groups involved in membership on the board and on the panels appear to be almost like a club, and this is something that needs to be addressed and should have been addressed before. A lot of Canadians had concerns with the program because of those problems, the perception of conflict of interest, and the problem with only expansive interpretations of the charter being funded under this program.
Mr. Chair, I believe in the Charter of Rights. I believe it needs to be a living document, as Ms. Morton stated. It needs to adapt to the times. But as it adapts, we use the courts to interpret that document. If we're going to provide funding for challenges to the charter or to decisions that government has made, we need to allow more than just one voice to be heard.
Often, the government voice is heard and it's usually well funded. We also have those seeking a broader application of the charter who want to be heard. And then there are those who want to intervene as well in those proceedings and who may have a different approach, who may argue more vociferously or less vociferously for a restricted application of the charter.
In any case, there needs to be some fairness in the system, and we need to ensure that the program has credibility. Unfortunately, we've lost that opportunity. The irony, as I said earlier, is that had some of these issues been addressed, perhaps the program would still exist.
Those are my comments.
:
The voices that are being brought forth are the ones that would not otherwise be heard, so I think that's very important to know about the program. The voices you're talking about, that want to defend the legislation of the government, are already being defended by the government. I mean, that voice is already there. The government gets advice from these groups and presents their voice in defending the challenge being brought forth by the voices that do not have the means to otherwise bring forth that issue. The government, if it chooses to, can certainly fund these groups, in addition to their own lawyers, to bring that extra voice in its own defence or supporting the government.
What we're saying is that the program is providing funding for the group that's challenging the law, saying that it isn't going far enough, it isn't being inclusive enough. I think that's very important to know, that this is the fundamental principle of what the court challenges program is about.
In terms of the membership, the program does outreach on a regular basis to try to include and get more groups from the various communities across Canada. It fluctuates in terms of numbers, but over the years it has gone up and down depending on interest in the program of one or another particular issue. But the program is always open to new membership from the very groups that are being targeted, if you will, and are supposed to benefit from this program.
In terms of opportunity for the program, like the evaluation said, the court challenges program of Canada, the corporation, was doing its job. It is serving Canadians and was serving the mandate of the government.
So we would love to see what we did or what was wrong. We would have loved to have had the opportunity to respond to any of the concerns, to have provided additional information that the government may have wanted before making any decisions about cutting the program.
Where was our opportunity to really provide—
Rather than a question, I have a comment to make.
I am very disappointed that the Court Challenges Program has been abolished for ideological reasons. Nonetheless, I agree with some of the ideas which have been shared. To a certain extent, we should have been able to meet with the program's managers and point out to them what was not working, or what could potentially cause a problem. That would have been one way of showing some degree of civility and decency.
I find it shameful that a program that has been so useful to women, linguistic minorities, and individuals who are in need, has been abolished. I will be inviting all BQ members to do what I will be doing in my riding, that is condemning the cavalier fashion in which this government has treated democracy in Canada, and those who were of service to those in need.
That is all, Mr. Chair.
I think we've discussed most of the issues of relevance today.
I'm going to end on a perspective that I bring from my region. The francophone school boards were not given the right; they had to fight, and there were bitter fights for years about those rights.
In my region, both school boards represent a new level of leadership that has benefited all of our communities. I know personally the grandchildren and some of the grandparents who fought bitterly against the extension of the school system, who are now proudly watching their children being assimilated into the francophone system, because it creates leaders.
It's important to have a program to ensure that in other parts of Canada, our francophone communities are able to access the same rights, which we now have in northern Ontario.
Instead of talking about the negative aspects of rights, we need to see the value of what it means for the Canadian context when rights are fully realized and we start to move forward.
Thank you very much for coming today.
I want to state again--and I appreciate Mr. Scott's comments--that Canada is very fortunate to have a Charter of Rights. We are held up around the world as a role model, and it's up to us to defend those rights. How we do that is usually and often up for discussion.
Mr. Scott did mention that the Prime Minister “doesn't believe in the process”. Those were his exact words.
If the process is flawed—as we and witnesses have certainly suggested—then it's not surprising that the Prime Minister wouldn't support the process. I don't believe this Prime Minister would ever support a process that is flawed. Why would he perpetuate that kind of a process and pour public moneys...?
You either cancel the program or fix it. But you're not going to carry on same old, same old—business as usual—doing things that are in essence flawed.
That's been our contention at this table. Cancelling the program was the right decision to make.
Perhaps in the future we'll come up with other ways of providing assistance to those who can't by any means access the courts to defend their charter rights.
But the program was flawed; many Canadians agreed with us.
I'll leave my comments at that, Mr. Chair.
:
Could I have everyone's attention, please?
Fortunately or unfortunately, we have another committee following us, and we have one more piece of business to do. If everyone could take their places, we can be brief.
This is a motion put forward by Mr. Angus. We discussed it a little bit on Monday. The motion reads:
Due to the ongoing uncertainty of the future of the Canadian Television Fund (CTF) as precipitated by recent announcements from Shaw Communications Inc. and Vidéotron Ltée that they will no longer live up to the terms of their license by withholding contributions to the fund, this committee will investigate the impacts of the CTF's potential elimination on the health of Canada's domestic television production and make recommendations to the House of Commons based on our findings.
You have heard the motion.
Would you like to speak to the motion, Mr. Angus? Be brief, please.
I had held off on this motion, at the advice of Mr. Abbott, in that we were expecting a clear response from the minister. That was fully my sense of what would be coming out of the meeting with Vidéotron Ltée and Shaw.
However, given the position that's come out from Vidéotron Ltée and Shaw following the meeting with the minister, I am much more concerned about the situation in the CTF now. The message we are hearing from industry is: “It's dead. Done. Gone.” That's a direct quote.
The effects of that will be profound both for domestic television and for anything we look at on CBC. I am asking that we make it a priority to look at it immediately.
I think that within four sessions we can adequately address it. But given the crisis that we are in right now, I don't believe we can afford to wait on this. People are very concerned. I think it is up to us, as the heritage committee, to step into the breach.
:
I'm going to be very short here and then we're going to quickly call the vote.
The one thing is that there are two dates we can't change: Thursday, February 8, which is already set; and February 13, when the minister is coming here. So we could start it on February 15. That's how close to being frontloaded we can be on that.
I'll ask for a vote on Mr. Angus' motion.
(Motion agreed to)
The Chair: It's unanimous.
The meeting is adjourned.