LANG Committee Report

Duty to consult the communities

The Accountability and Coordination Framework of the Action Plan for Official Languages imposes the requirement to:

Consult affected publics as required, especially representatives of official language minority communities, in connection with the development or implementation of policies or programs.¹

This part of the Action Plan stems from subsection 43 (2) of the Official Languages Act, which requires Canadian Heritage to:

Take such measures as that Minister considers appropriate to ensure public consultation in the development of policies and review of programs relating to the advancement and the equality of status and use of English and French in Canadian society.

The community representatives heard by the Committee maintain that they were not consulted before the Court Challenges Program was cancelled. In its brief to the Federal Court, the government asserts that Part VII does not in any way require the government to consult the communities before making a decision in this matter. It argues that the provision of the OLA cited above

[Translation:] leaves the Minister of Heritage to choose the method of public consultation. In other words, it is up to the Minister to determine how he will consult.²

In the same brief, the government argues that:

[Translation:] the Minister of Heritage decided to fulfill this obligation through regular, institutional consultations.³

The Commissioner of Official Languages takes a position that is diametrically opposed:

In the absence of positive measures, the termination of federal funding under the 2006 expenditure review is contrary to the Government of Canada’s commitments and obligations under Part VII of the Official Languages Act.⁴

The Committee cannot comment on this matter, which is a key element of the case to be heard by the Federal Court. It is however entirely legitimate for the Committee to take a position on the Accountability and Coordination Framework that is part of the Action Plan for Official Languages, expiring on March 31, 2008. This framework is not an act, as reiterated in the government’s brief to the Federal Court, but a majority of the Committee’s members are concerned about the message being sent by such a position, which disregards the government’s still valid commitments set out in the Action Plan, and the respectful treatment that community representatives and CCP officials would have expected instead of hearing through the media that the program had been cancelled.

The Government Response of October 2007 to the Committee’s report on the vitality of official language minority communities notes:

The Government of Canada reiterates its commitment to respecting fully the objectives undertaken in the Action Plan for Official Languages.⁵

The Accountability and Coordination Framework is an integral part of the Action Plan, and regardless of whether it has legal status, the government should have lived up to its undertakings.

The Committee is therefore of the opinion that, in view of its own undertakings, the government should have acted much more promptly to inform the communities of its intention to cancel the CCP. While the Committee cannot comment on the legality of the government’s decision to fulfill its obligation through regular, institutional consultations, such consultations would clearly be pointless if the government does not inform the participants of its most important decisions.

Yet the investigation report of the Office of the Commissioner of Official Languages notes that, in its spending review of September 2006,

Not only did TBS’s instructions limit internal discussions to the most senior government officials, they also prevented departments from consulting outside parties, including official language minority communities, on proposed budget reductions.⁶

It is understandable that the government wishes to test the legal scope of its commitments under the Official Languages Act, but it cannot be justified that the government deliberately prevented such consultations.

The communities’ intense reaction to the government’s cancellation of the CCP derives not only from the program’s effect on language rights, but also from the very strong symbolic value it acquired as a result. The CCP helped the communities achieve what they regard as landmark victories in gaining recognition of their rights. In the belief that the court decisions would not have been rendered if the program had not enabled them to take action, often after appeals by the provincial governments, the communities credit the CCP for many of the very tangible benefits stemming from these decisions. This is especially true for school governance and the Montfort Hospital. Many witnesses stated that these gains would simply have been unimaginable without the CCP.

The federal government’s modest funding for the program, $525,000 per year for language rights, served in turn as a very concrete representation of Canada’s commitment to fostering the vitality of official language minority communities. The decision to cancel the program, regardless of the reasons, was perceived by the community as a sudden and unexplained breach of an agreement that they had until then considered strong.

The government’s right to govern

The Commissioner of Official Languages’ argument focused on the government’s obligation to comply with Part VII of the Official Languages Act, and not on its obligation to deliver any specific program as such. He did not therefore simply recommend that the CCP be re-established, and some community representatives expressed disappointment with this position.⁷ The Office of the Commissioner offers the following explanation:

OCOL fully recognizes the prerogative of the federal government to review and revise priorities, policies and programs. In interviews and in public statements, representatives of minority language organizations also readily acknowledged the government’s right to govern. The fact that a given activity supports official language minority communities does not mean it is the only option or make it immune from change.⁸

This right to govern is also an integral part of the Contribution Agreement, which stipulates that the Government of Canada may simply terminate funding:

In response to the government’s annual budget, a parliamentary, governmental or departmental spending decision, or a restructuring or re-ordering of the federal mandate and responsibilities that impact on the Program under which this Agreement is made.⁹

A program that meets its objective need not of course become permanent, provided that its cancellation does not threaten the attainment of its objective. In this case, however, the links between the CCP, access to the courts for official language minority communities, the clarification of constitutional rights and community vitality are unanimously recognized, even by those opposed to the program. When the measures provided to achieve certain objectives are so clearly effective, the elimination of those measures represents an obvious risk to achieving the objectives, unless other measures are provided. Moreover, the elimination of measures that are entirely effective, together with a lack of proposed alternatives, creates legitimate suspicion of the government’s real desire to meet these objectives.

What the government contests in its brief to the Federal Court is not that these links exist but rather their importance:

[Translation:] The contested decision [cancellation of the CCP] has a very indirect impact on the applicant’s language rights. No language rights are directly at issue in this matter (such as the right to government services in French). Rather in this case, the applicant is demanding the right to funding to cover the cost of litigation. The OLA does not guarantee this right, nor does our Constitution.¹⁰

            If the government claims it can fulfill its constitutional and legal responsibilities through measures other than the CCP, its right to govern must be acknowledged and the electorate must be trusted in its choice of the executive. Yet we must also recognize the right of individuals and groups to challenge the validity of these decisions and the supremacy of the courts in their determination of the government’s legitimate understanding of its commitments and the legality of its decisions.

            In this regard, the government takes the following position in its brief:

 [Translation:] The role of the courts in general is not to tell the government how to spend public funds. It is up to elected officials to make those decisions and their actions are judged by the electorate.¹¹

            The Committee members fully recognize the inherent risks of an imbalance of power that would limit the government’s decision-making flexibility in order to make way for too much litigation surrounding the political process. Community representatives repeatedly stated in this regard that they did everything possible to avoid going to court, and that respect for language rights should ideally be negotiated politically. The Committee members obviously share this wish, but history tells us that in the event of disagreement between a minority and the government, the power of the courts has often been a more powerful incentive to the government than a sincere desire to maintain social harmony. According to the majority of the Committee members, access to justice is therefore a key to maintaining social harmony. If an alternative to the CCP is being considered to restore the balance between minorities’ rights and limited resources on the one hand, and the government’s legitimate prerogatives and significant resources on the other, the Committee is willing to consider it. In the absence of such an alternative, the CCP has proven its effectiveness and remains the best way to preserve this balance.

Neutrality of the CCP

This is clearly a more difficult issue to tackle since it involves careful constitutional analyses and moral and philosophical principles that go far beyond the administration of a government program. We will limit ourselves here to a few general comments. First of all, the Committee members do not consider it possible or desirable for a country’s constitution to be neutral. This fundamental law expresses specific values that by definition are opposed to other values. All decisions by all orders of government must be made within the framework of these basic values, as broadly worded in the Constitution. The vast majority of government decisions and programs also reflect the sides it has taken in favour of certain points of view and against others. The only requirement is that these decisions and programs do not contradict the fundamental values of the country as expressed in the Constitution. In the event of ambiguity or conflicting points of view, it is up to the courts to interpret the meaning of these values in a specific case. Their interpretation will also change over time, as jurisprudence evolves and society’s values change. One witness offered an especially apt description of this view of the law:

I think the law, if I can use an analogy, is like a living tree; it constantly is evolving and developing. So yes, with the Charter, for example, I believe it celebrated its 25th anniversary. I’m generally familiar with the battle and struggle for English-language rights and French-language rights in Canada, and that develops over time. I don’t think the law or the Charter or any section of the Charter is static, for example, so Section 15 may be interpreted in one way in 1982, or 1985, and down the road may be interpreted in another fashion, depending on who may be interpreting the law at that point. So I would say yes, we have a body of jurisprudence on the Charter, for example, in different sections; however, it’s continually under review and development and will evolve, I’m sure, for years to come.¹²

Mr. Doucet expressed the same position:

The Constitution is an ever-developing, living organism.¹³

It establishes principles that are not neutral. In the case of the CCP, the objective is to promote certain values and encourage the broad interpretation of the rights covered by the program.

By their nature and wording, the provisos in the agreement are intended to broaden those fundamental rights. The objective is to ensure that all citizens are equal under the law and have access to services in the official language of their choice. The underlying principle of that provision is one of inclusion. Challenges based on that provision are naturally intended to increase people’s ability to participate. This program does not exclude anyone; rather, it gives people access to the justice system. It would be contrary to that objective to support cases that jeopardize the rights of groups that are supposed to be protected by equality and linguistic rights. Unlike what our critics claim, this is not only an issue of diverging views on equality. The program does not fund cases that would likely undermine the equality and linguistic rights of protected groups.¹⁴

The CCP therefore advocates a broad interpretation of language and equality rights. As such, it is not neutral, since such an interpretation of rights is obviously not the only possibility. Many court decisions have demonstrated however that this broad interpretation is largely consistent with the courts’ interpretation of constitutional principles. It is quite possible that some aspects of language rights have been clarified more readily and more quickly than others because many decisions were made with the support of the CCP, but that does not mean that these decisions are not valid. The Program has allowed the courts to interpret the sections of the Constitution covered by the Program, but the CCP cannot be held responsible for whether or not these decisions have favoured the organizations or individuals that obtained funding under the program.

It is legitimate for the government to wish to promote a different interpretation of constitutional rights. Any initiative of this kind must however first be consistent with existing laws. It will be up to the courts to decide whether the cancellation of the CCP violated certain constitutional principles and provisions of the Official Languages Act. A majority of Committee members are in favour of a broad interpretation of constitutional rights. If the courts find that the narrower interpretation of rights put forward by the government enables it to meet its legal and constitutional responsibilities, members will have to acknowledge that decision. If the courts find otherwise, the government will have to implement measures to achieve similar results to those achieved under the CCP.

The Committee members also fully recognize that some provisions of the Constitution may not be consistent with certain values that are important to certain individuals or groups, especially as regards equality rights. It is however entirely possible that these differences may not always be expressed freely in the interest of healthy debate on these fundamental issues.

In addition to the points of law to be clarified by the courts in the case of the FCFA v. Her Majesty the Queen, the matters considered above are the central issues in the debate surrounding the government’s decision to cancel the CCP. Some secondary issues also merit attention.

State of jurisprudence

When the CCP was cancelled for the first time in February 1992, the Honourable Gilles Loiselle, then President of the Treasury Board, offered the following explanations.

[Translation:] The federal government has made substantial funding contributions to the Court Challenges Program over the years, providing for the development of extensive jurisprudence.¹⁵

Fifteen years later, it is legitimate to ask what constitutes sufficient jurisprudence. The document often mentioned in this regard is the Summative Evaluation of the CCP, conducted in 2003, which included meetings with judges and constitutional experts.

The evaluation findings suggest that there are dimensions of the constitutional provisions covered by the Program that still require clarification and that, most probably, there will continue to be dimensions of the constitutional provisions that require clarification indefinitely.¹⁶

Regardless of the number of decisions rendered, there will always be further important issues that cannot be anticipated. In other words, there are no clear criteria to determine whether there is sufficient jurisprudence. This will depend more on the government’s decision whether or not to encourage the clarification of constitutional rights.

Another often quoted document is the Government of Canada’s response to a question raised about the CCP by the United Nations Committee on Economic, Social and Cultural Rights, further to the tabling of its Fifth Report on the International Covenant on Economic, Social and Cultural Rights. Canada presented this response in May 2006 at a session of this Committee. 

In its study of the impact of the elimination of the CCP, the Office of the Commissioner of Official Languages notes:

In May 2006, while appearing before the United Nations Committee on Economic, Social and Cultural Rights, the federal government itself emphasized the importance of the Program and recognized the relevance of maintaining it to address the legal issues that still remained to be clarified.¹⁷

The report is quoted as follows to support this statement:

The Court Challenges Program, funded by the Government of Canada, provides funding for test cases of national significance in order to clarify the rights of official language minority communities and the equality rights of historically disadvantaged groups. An evaluation of the CCP in 2003 found that it has been successful in supporting important court cases that have a direct impact on the implementation of rights and freedoms covered by the Program. [The individuals and groups benefiting from the CCP are located in all regions of the country and generally come from official language minorities or disadvantaged groups, such as Aboriginal people, women, racial minorities, gays and lesbians, etc.] The Program has also contributed to strengthening both language and equality-seeking groups’ networks. The Program has been extended to March 31, 2009.¹⁸ (The sentence in brackets was not included in the Commissioner’s report)

It would indeed have been unusual for the current government to have presented this report at a United Nations committee meeting. This report was produced in August 2005, however, before the current government was elected. The confusion derives from the fact that, after presenting this report at the United Nations, Canada received a list of questions, the answers to which were supposed to be presented in May 2006. The question was raised why Canada had not expanded the equality rights component of the CCP to include challenges of provincial and territorial legislation. Canada’s response, which was presented to the UN in May 2006, that is, after the election of the Conservative government, was much more neutral than the report of August 2005.

It is not possible for the government to support all court challenges, but this uniquely Canadian program has been successful in supporting a number of important court cases that have had direct impacts on the implementation of linguistic and equality rights in Canada. A recent evaluation found that there remain dimensions of the constitutional provisions currently covered by the CCP that still require clarification and the current program was extended to March 2009.¹⁹

This response is certainly not explicit enough to assert that the current government “emphasized the importance” of the program internationally a few months before it was cancelled.

Transparency of the CCP

The only serious reservation expressed about the CCP in the Summative Evaluation conducted in 2003 before the renewal of the Contribution Agreement concerned its rigid application of privacy provisions. That rigidity cast doubt on the Program’s ability to give a satisfactory account of its process for selecting recipients of financial support:

The standards established in the Access to Information Act and the recommendations of the Auditor General of Canada and her latest reports all point towards a need for more transparency on the part of the Corporation.²⁰

However, the Final Investigation Report issued by the Office of the Commissioner of Official Languages in October 2007 had this to say about the CCP’s transparency:

During the investigation, government officials confirmed, to the extent possible subject to solicitor-client privilege, that all issues in the program evaluation identified for improvement were addressed in the subsequent contribution agreement.²¹

Possible replacements for the CCP

To date, the government has offered no possible replacements for the CCP. The government has, however, occasionally raised the possibility, in particular in a brief submitted in Federal Court,²² that the Office of the Commissioner of Official Languages could serve as an alternative to the CCP, and that other existing provisions of federal and provincial legislation, and legal aid programs in particular, could play a role analogous to that of the CCP. In its October 2007 Final Report, the Office of the Commissioner of Official Languages clearly rejected these possibilities:

The Commissioner reminds the government that, under the Official Languages Act, a complainant or the Commissioner can apply to the Federal Court of Canada only on matters relating to that Act. Furthermore, certain legislative linguistic rights are not covered by the Official Languages Act, for example, minority language education rights set out in the Canadian Charter of Rights and Freedoms. With regard to provincial legal aid programs, they provide legal services to low-income people, most notably in legal actions concerning criminal and civil law and family law. Legal aid would not be available, for example, to finance a court action aimed at obtaining a minority language school or school board, causes that the CCPC could and did support in meaningful ways over the years.²³

The search for international comparisons that could suggest an alternative to the CCP proved fruitless:

The consultations and research completed for the purpose of this evaluation have identified no other country with a similar program.²⁴

The review of all the evidence presented to the Committee shows that five options were defended pursuant to the government’s decision to cancel the CCP:

1.       Uphold the cancellation;

2.       Re-establish the entire program;

3.       Re-establish the linguistic component of the Program;

4.       Redefine the CCP’s mandate to make it more neutral while continuing to apply it to the rights currently covered by the program, or expanding it to all constitutional rights;

5.       Provide federal government support to establish a foundation that would keep the program going and that would eventually become independent of government policies.

A majority of the Committee members reject the first option. Upholding the cancellation would mean a negation of the principle that there must be a balance between the presentation of a minority viewpoint by organizations with few resources and the presentation of the majority viewpoint by a government with enormous resources. Moreover, the easier access to the courts that the CCP permitted to defend language rights unquestionably helped clarify those rights and at the same time made a significant contribution to the communities’ vitality. While the CCP may not be the only way to achieve that result, no solution has been found to date that could provide such effective support for the rights of the official-language minority communities.

For these same reasons, a majority of the Committee members is in favour of the second option, i.e., the re-establishment of the entire Court Challenges Program as it existed when it was cancelled on September 25, 2006.

            A majority of the Committee members also rejected the third option, to re-establish the linguistic component of the CCP. Certain arguments in favour of this option, however, mentioned, for example, that the Committee has no mandate to examine questions related to equality rights. The Committee members could also have chosen this option for strategic reasons, recognizing that there is more likely to be a consensus on the CCP’s “language rights” than on its “equality rights.” Although a majority of the Committee members unreservedly support the CCP’s “equality rights,” they could have also thought that a recommendation to re-establish the entire Program would adversely affect the communities. In fact, if the government rejected this recommendation, it would in all likelihood have been for reasons unconnected to language rights. It would be a shame if the basic consensus that exists about language rights could not be expressed and were instead endangered by being linked to the more difficult and contentious debate taking place about other fundamental rights. The opposition to other issues could thus contaminate the relative peace that seems to prevail on the question of language rights, both among the Canadian public and on the Committee that serves as its reflection. If the language climate deteriorated following the breaking of the pact that the CCP represents for the communities, it would be in large part due to the government’s refusal to clearly explain the reasons for its decision to the Canadian public.

The fourth option comes from witnesses who said that the CCP should be modified to make it more neutral.. The Committee is prepared to examine any proposal for a program that would uphold the principles of access to justice and clarification of constitutional rights but that would not defend a specific view of the law.

Similarly, the fifth option recommending the establishment of a foundation is an interesting avenue that could avoid the upheaval associated with the creation and cancellation of programs. The Committee is also wholly prepared to attentively examine any proposals made to it in this regard.

However, the Committee cannot consider an analysis of the alternatives until the basic question about the cancellation of the Court Challenges Program is resolved. The Committee is not prepared to begin a constructive dialogue on the question of access to justice for official-language minority communities and clarification of constitutional language rights until the government has repaired the error it made by cancelling the CCP without consulting the communities and without explaining its decision to the Canadian public. That is why the Committee wishes to close it report by recommending:

Recommendation 2

That the Government of Canada re-establish the Court Challenges Program under the terms of the contribution agreement that was in effect befo