LANG Committee Report

CANCELLATION OF THE COURT CHALLENGES PROGRAM IN SEPTEMBER 2006

            On September 25, 2006, as part of an expenditure review, the Government of Canada announced a $1 billion reduction in spending, which led to the cancellation of a number of government programs, including the Court Challenges Program.¹ The Program is still operating however for cases for which funding was approved before September 25, 2006.

            On October 25, 2006, the Fédération des communautés francophones et acadiennes du Canada (FCFA du Canada) officially filed a petition with the Federal Court to have the decision to cancel the Court Challenges Program’s funding declared null and void. The FCFA maintains that when it ceased to fund the Court Challenges Program, the federal government did not take sufficient account of the decision’s impact on the development and vitality of the official language minority communities or of its undertakings to the linguistic minorities under the terms of the Canadian Charter of Rights and Freedoms and the Official Languages Act.²

The reasons given by the applicant are:

• The decision to revoke the CCP contravenes the contribution agreement signed between PCH and the CCP;
• The decision contravenes the constitutional principles of respect for and protection of minorities;³
• The government’s obligation to act positively toward official languages minorities (clause 16);
• The decision contravenes the federal government’s fiduciary responsibility toward official language minorities;
• The decision contravenes Part VII of the Official Languages Act, in particular sections 41, 42 and 43.

            Furthermore, the Commissioner of Official Languages examined 118 complaints received in 2006-2007 relating to the cancellation of the CCP. In his final report, delivered to the complainants and government stakeholders on October 9, the Commissioner recommended that the government review its decision to cut the CCP and other programs that serve linguistic minorities, or face further actions.

The spending review of September 2006 was the result of a seriously flawed decision-making process that prevented full consideration being given to the needs and interests of official-language minority communities.⁴

            The Commissioner has called on the government to thoroughly review its decision by February 2008. If the Commissioner is dissatisfied with the government’s response, he can launch a lawsuit against the government or table a special report to Parliament. In November 2007, the Commissioner also decided to apply to the Federal Court of Canada for intervenor status in the FCFA lawsuit.

            The Committee must therefore exercise caution in the positions it states on the key components of the application filed with the Federal Court.

            As part of its May 2007 report on the vitality of official language minority communities,⁵ the Committee heard from representatives of these communities who opposed the decision to cancel the program. The organizations that spoke to this issue all called for the full reinstatement of the Court Challenges Program.⁶

            In light of these objections, the Committee then recommended:

That the Government of Canada reinstate the Court Challenges Program or create another program in order to meet the objectives in the same way.

            The report contained 38 other recommendations relating to community vitality. In its response to the Committee’s Report, published in October 2007, the government did not address this recommendation. The response does not comment on it whatsoever.

            The government’s failure to comment on the CCP engendered mistrust of the government’s reasons for this decision. Some remarks were made in the House of Commons, but they failed to provide a real explanation.

            Various witnesses deplored this refusal to justify the decision.

No satisfactory one has been forthcoming in the months that have passed since the cancellation of the program for this sudden and final decision. The absence of such an explanation has inevitably led to suggestions that the cancellation was motivated by ideological intransigence, partisan considerations, or simple disdain for due process. We wait to be enlightened by a more constructive or defensible answer.⁷

            When she appeared before the Committee on December 6, 2007, the Minister of Canadian Heritage, Status of Women and Official Languages, the Honourable Josée Verner, in responding to a question about the reasons for the cancellation of the CCP, answered: “About the Court Challenges Program as such, […] the case is before the courts, and, at this point, I cannot comment.”

Given the government’s failure to respond to the Committee’s recommendation, and the failure to explain the decision to cancel the CCP to community representatives, the Committee recommends:

Recommendation 1

That the government clearly explain to Canadians its reasons for cancelling the Court Challenges Program.

The following analyses present various points of view on the main issues involved in the cancellation of the Court Challenges Program.

Contribution of the CCP to the vitality of official language minority communities

All the witnesses heard and all the serious analyses of the impact of the CCP maintained that it had a significant effect on community development. Even witnesses who were in favour of cancelling the Program stated that it was “designed to protect minority language rights.”⁸ The summative evaluation conducted in 2003 reached the same conclusions.

Most key informants described the overall impact of the Program as significant. In relation to language rights, many noted that the CCP has always been a prominent player in practically all the critical court challenges related to these rights. Key informants think that many of these challenges would never have been possible without the CCP.⁹

In its brief submitted to the Federal Court, the Government of Canada also acknowledges that “[Translation:] the CCP undeniably fostered greater access to the courts in cases involving constitutional language rights.”¹⁰

During its hearings, the Committee heard dozens of examples illustrating how the CCP has furthered language rights in Canada. The use of the CCP forced provincial governments to comply with section 23 of the Canadian Charter of Rights and Freedoms, which establishes school governance rights, undoubtedly the greatest contribution to enhancing community vitality. In other sectors, the CCP helped save the Montfort Hospital, the only francophone hospital in Ottawa. The challenges also led to changes to the Canada Health Act and the responsibilities of some municipalities, and influenced electoral boundaries. These decisions and others (see Appendix A) have become the most striking symbols of the progress made in official language community development. The communities firmly believe that they would not have a large number of their institutions without the Court Challenges Program.

In its report on the complaints it received regarding the cancellation of the CCP, the Commissioner of Official Languages notes similarly that:

The evidence is overwhelming that the Court Challenges Program directly and significantly assisted in the advancement of language rights in Canada and, in so doing, contributed to the vitality and development of our official language minority communities.¹¹

Access to justice

There is thus general agreement that the CCP has afforded communities better access to justice. In its brief to the Federal Court, however, the government argues that:

[Translation:] it is entirely debatable that the decision to end [funding for the] CCP will henceforth deprive the applicant and the groups it represents of this access.¹²

The government argues that while the CCP has afforded communities better access to justice, the cancellation of the program, even if it reduces that access, does not deny the communities access to justice. They will continue to have access to justice, but it will be more difficult, the government maintained.

The Committee cannot comment on what constitutes reasonable access to justice. Yet, based on much of the evidence heard, a majority of Committee members are of the opinion that greater access to justice does not constitute an unfair advantage but rather restores the balance toward real equality, since minorities are by definition at a disadvantage compared to the majority. They feel that, if minorities do not have comparable access to the courts as does the majority, which is usually represented by a government, such access is merely theoretical.

Giving people rights without access to justice is meaningless. A charter of rights without the means to uphold those rights is a denial of justice. The Court Challenges Program of Canada has helped advance rights in this country. We believe that its cancellation will lead to a democratic deficit.¹³

This is what some witnesses referred to as a “substantive” equality:

Substantive equality is essentially like handicapping a golf game. What it means is that certain groups who claim they have fallen behind because they are not on equal footing, they are not as strong, either economically or socially, claim the government owes them a head start in terms of achieving their goals.¹⁴

It is entirely legitimate for the government or any other group to advocate a different concept of equality, but the courts will have to determine which of these concepts applies in a given case. As regards language rights, the courts have tended to support substantive equality. The CCP can certainly not be blamed for the fact that the Supreme Court interpreted the application of the Constitution in this way.