44th Parl. 1st Sess.
May 3, 2023 02:00PM
- May/3/23 2:12:20 p.m.
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Mr. Speaker, today is a special day for the over one million Polish Canadians celebrating Polish Constitution Day.
Known as the constitution of May 3, the Polish constitution is the first written constitution in modern Europe and the second constitution in the world after the United States. The Polish constitution introduced progressive democratic reforms that included a constitutional monarchy and the separation of powers.
Here in Canada, Polish Canadians celebrate Constitution Day by gathering in Polish halls and church basements to sing hymns and act plays, recite poems and reflect on Poland's legacy of fighting for freedom and democracy.
To all Polish Canadians across Canada, I wish a happy Constitution Day and a happy Polish Heritage Month in Ontario. I join all Polish Canadians in reciting the beautiful words witaj maj, trzeci maj, dla Polaków błogi raj.
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moved that Bill C-316, An Act to amend the Department of Canadian Heritage Act (Court Challenges Program), be read the second time and referred to a committee.
He said: Madam Speaker, it is often too easy to take for granted the many rights and freedoms we enjoy as Canadians. Canada is a free, successful country because of the decisions made by those who came before us. We are an open and inclusive democracy in large part because the rights of individuals are respected. Canada is a country where the rule of law operates independently from politicians and where our Constitution protects the rights of Canadians. This is something we should champion. It is something we should celebrate. It is something we must do everything we can to protect.
I introduced Bill C-316 to build upon the good work of previous Parliaments. In the 42nd Parliament, at the Standing Committee on Justice and Human Rights, of which I was then a member, as part of our study on access to justice we recommended that the court challenges program, which had previously been cancelled, be recommenced. I am happy to say this was in fact done.
In our report, we also called for enshrining the court challenges program in legislation to enhance its sustainability and to ensure that any government seeking its cancellation in the future would require the approval of Parliament to do so. Bill C-316 would do just that. It would enshrine the court challenges program into Canadian law, providing stability and certainty to the program, and ensuring that it continues to operate predictably. This, in turn, would give greater protection to the rights of Canadians as we continue to provide a mechanism that enables individuals and organizations to challenge laws and regulations that they believe violate their rights.
The court challenges program protects and strengthens constitutional rights. It provides funding for individuals and organizations who wish to bring matters of national importance before the courts.
More specifically, the program provides funding to protect our constitutional and quasi-constitutional rights in matters involving official languages and human rights.
Created in the 1970s, the court challenges program played a key role in helping Canadians clarify and assert their rights, especially with regard to official languages and equality rights.
The program was eliminated in 2006, and our government restored it in 2017. We expanded it to include rights not originally covered, such as specific sections of the Canadian Charter of Rights and Freedoms pertaining to fundamental rights, including democratic rights, freedom of expression, and the right to life, liberty and security of the person.
Over the years, the program has been used many times to protect the rights and freedoms of Canadians. It has provided funds to disabled Canadians to help them ensure they are treated fairly. It has helped to clarify the rights of LGBTQ+ people to marry whom they love. It has strengthened the rights of official-language minorities to protect their rights and preserve their culture.
The court challenges program also provided support to important cases, such as Andrews v. Law Society of British Columbia, where the Supreme Court of Canada ruled that a law society could not prevent a qualified permanent resident from practising law in Canada simply because they were not a Canadian citizen.
The court challenges program strengthened the rights of French-language minorities in British Columbia. It helped protect the rights of francophone children to receive French-language education of equivalent quality to that of English-language education.
In its ruling in June 2020, the Supreme Court of Canada reaffirmed the importance of education in the official language of one's choice. The court also recognized the key role that section 23 of the charter plays in the vitality of official language minority communities.
I know that some of my honourable colleagues may ask why we would provide funding to allow people to sue us. I think this asks the wrong question. The right question is why we would fund cases defending the charter, and the answer is that, as we know, the cost of justice can be prohibitively expensive. Justice should not be decided by who has the most money. It is of significant public good that the constitutional rights of Canadians be protected, whether or not they have money.
The value of the court challenges program is that it breathes life into the charter and into the Official Languages Act. It provides meaning to our constitutional rights, particularly by enabling those with lesser means to protect their rights. The program allows matters of merit with significant public impact to be brought forward, regardless of the means of those bringing forward the case.
Other members might wonder if the program allows the federal government to decide which cases receive funding. Does it allow the federal government to sue provincial governments that do not agree?
I can say that the answer to that question is no. The program is independent of the government. It is administered by the University of Ottawa. Funding decisions are made by two groups of independent experts, one for official language rights and the other for human rights.
These committees are made up of experts who are selected based on their expertise in law. The government has no say in which cases receive funding, and the funds are often used to challenge federal decisions or policies.
This is, in fact, a good thing. I think that I can say without much controversy that the government does not always get it right, and it is important that, when policies and laws are put into place, we have a process to review, and possibly correct, these decisions. In a constitutional democracy where the rule of law is paramount, allowing Canadians to bring forward cases when their rights may have been infringed upon is an important part of our constitutional democracy.
We face a great many challenges as Canadians. The world is an uncertain place, but Canada is blessed with tremendous resources and potential. We have some of the best and brightest people in the world, and we have inherited the tremendous institutions that have made us successful: pluralism, freedom of speech and debate, and the opportunity to make a better life for our families. These are the things that bring us together as Canadians.
The rights and the freedoms that we hold dear are critically important to Canada’s success as a country. We must do everything we can to shore up our democracy and protect our constitutional system. By passing Bill C-316 and enshrining the court challenges program into Canadian law, we would be sending a strong message about the importance of protecting the rights of Canadians. It would demonstrate our shared commitment to ensuring that the rights and freedoms guaranteed by the charter, the Official Languages Act and the Canadian Constitution are respected and upheld.
I hope members will join me in supporting Bill C-316, so we can better protect our democratic institutions.
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Madam Speaker, I would like to know what my colleague thinks.
The court challenges program was established in 1978 to counter the Charter of the French Language, which was democratically passed in Quebec. Then, the 1982 Constitution further reinforced that. It was also established to counter the Charter of the French Language, which should have fallen under Quebec's jurisdiction.
The most frustrating thing is that we do not know who those public funds are going to. The Standing Committee on Justice and Human Rights has already proposed that the organization responsible be allowed to disclose who received the subsidies once the court proceedings are complete.
I want to know what the member thinks about making the process more transparent and either excluding Quebec from the program or making sure that the program is not systematically used to dismantle Bill 101 and its reinforcement, Bill 96.
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Madam Speaker, I rise today to speak about Bill C‑316, an act to amend the Department of Canadian Heritage Act, specifically with respect to the court challenges program.
The Bloc Québécois supports this bill in principle. We would like to look at Bill C‑316 in committee and make recommendations. The Bloc Québécois's current position already favours the continuation of the court challenges program, especially considering the important role it plays in promoting the rights of francophones outside Quebec. We therefore support the idea of ensuring the program's future by including it in the Department of Canadian Heritage Act.
However, in my speech, I will go over the Bloc Québécois's reservations concerning the program's terms and conditions, especially the lack of clarity surrounding its management and the process for deciding which cases and organizations will receive funding. Next, Bill C‑316 proposes measures designed to make the program's administration more transparent. On the surface of things, it seems to answer a Bloc Québécois demand related to one of our major criticisms of the program, namely, its claim to operate at arm's length from the executive.
Finally, I will address the fact that this program is currently being implemented and administered by the University of Ottawa, but it is impossible to prove that decisions about cases are not politically driven because of the lack of transparency and accountability measures.
First, in terms of transparency, Bill C‑316 states that the organization responsible for administering the court challenges program would be required to report annually on its activities, including disclosure of the list of cases funded during the year. These reports would be tabled before Parliament. The Bloc Québécois believes it is imperative that the reports include not only the cases, but also the recipient organizations, as well as the amounts of money allocated. That is one way Bill C‑316 could be improved. We would also then be able to assess the amount each part of the program receives, in other words, official language rights and human rights. It would be interesting if the report also had to include a list of the unsuccessful applicants.
Second, the fact remains that the court challenges program can be used to fund challenges to Quebec laws, such as the Charter of the French Language and the state secularism law. The crux of the problem is that we cannot pick and choose, based on our political views, which laws should be challenged and which ones should not be, even if we have good reason to believe that some laws that do not pass the test in the Canadian courts would be deemed constitutional under a future constitution of Quebec.
A partial fix for this problem as far as the official languages component of the court challenges program is concerned could involve a program framework that takes an asymmetrical approach to Canada's official languages. Since the Liberal government recognizes that only one of the official languages is at risk, then it should agree to grant program funding only to cases that defend the rights of francophones.
The text of Bill C‑316 amends the Department of Canadian Heritage Act to specify that, in exercising the powers and performing the duties and functions assigned to the Minister of Canadian Heritage under that act, he or she shall maintain the court challenges program.
Here are a few explanations. From the Bloc Québécois's perspective, the court challenges program has two major flaws in its design. The first is the fact that, historically, the program has helped to undermine the protection of French in Quebec. The second is that, historically, the program was politically oriented and acted as the judicial arm of the executive branch.
Bill C‑316 could potentially fix, or at least mitigate, the second problem we see, namely the program's lack of transparency and independence. This would be brought about by adjustments and improvements, in particular by disclosing in the annual reports not just the cases funded, but also all the amounts granted and the recipient organizations.
As for the first problem, it could also be addressed, but this would require refocusing the vision of Canada's official languages policy, which the Liberal government and its NDP ally just rejected in the review of Bill C‑13. This problem could be solved with amendments to this bill or with future legislation.
The court challenges program has gone through three historical phases. First, the date of the program's creation is significant. The court challenges program was established in 1978 in a very specific context of heightened language tensions and Quebec-Ottawa confrontations following the election of the Parti Québécois in 1976, and the adoption of the Charter of the French Language the following year. We know that Canada's prime minister at the time, Pierre Elliott Trudeau, and his government very much disliked Bill 101.
The year after Bill 101 was passed, Ottawa created the court challenges program to subsidize anglophone lobby groups' legal fees from challenging Bill 101. It was not originally a formal program. The Department of Justice decided which cases would be funded and how much they would receive based on its own objectives. This approach obviously put the government in a conflict of interest.
Between 1978 and 1982, the court challenges program funded six cases, half of which challenged Bill 101. At the time, the program was not at all independent. The cases that would be brought before the courts were selected and funded by the executive branch. To assess applications for funding for language rights, a committee was formed by selecting members from among a small group of candidates proposed by agencies that dealt with official languages.
The third version was initially called the language rights support program. The Stephen Harper government, which had cancelled the first program, was forced to create this new program following an out-of-court settlement with the Fédération des communautés francophones et acadienne du Canada, or FCFA.
The new and current court challenges program arose from a Liberal campaign promise in 2015. The administration of the program was entrusted to the University of Ottawa. The program relies on two committees of experts to decide which cases can be funded according to two streams, namely human rights and official language rights. We know that there is a bit of bias here.
Currently, through an access to information request, it is possible to find out which cases were supported, but it is impossible to find out who the recipients were and how much money they got from the program. This means that taxpayers cannot find out how the money allocated to the program is being spent. Since the year 2000, the names of individuals or organizations receiving money cannot be disclosed, after a court ruled that applications and funding contracts are protected by attorney-client privilege. That has made it difficult, if not impossible, to access accurate information for at least two decades. Annual reports, when available, contain only general information and mention only examples.
To ensure transparency and accountability, a report by the Standing Committee on Justice and Human Rights recommended that, after a case is filed, the names of those who received funding from the court challenges program and the nature of the cases be disclosed in each annual report, unless such disclosure would prejudice the litigants. It appears that no follow-up has been done in this regard.
During the committee's consideration of Bill C‑13 on modernizing the Official Languages Act, the Bloc Québécois tabled an amendment to have the program administered transparently, with consideration for the rights granted by provincial and territorial language regimes, and mirroring the position of the Standing Committee on Justice and Human Rights, to ensure as much transparency as possible. The amendment was rejected with the NDP's support, despite the party's claims about supporting Quebeckers' right to self-determination.
Issues related to the program's transparency and independence came into clear view during the controversy surrounding the $125,000 in funding provided to the English Montreal School Board to mount a legal challenge to Quebec's secularism law.
The Liberal government is hiding behind the program's alleged independence to avoid having to address the fundamental issue: the Canadian government's financial commitment to supporting challenges to Quebec's secularism and language laws.
In addition to the transparency issues, the other problem with the court challenges program is that, although it has been used to advance the rights of francophone minority communities in other provinces, it has also been used to challenge Quebec laws that are designed to promote and protect the French language in Quebec.
That problem stems from the main flaw in Canada's official languages policy, which assumes that there is symmetry between the anglophone and francophone minority communities. That structure, which was designed by Pierre Elliott Trudeau and which the Liberals just refused to change when they modernized the Official Languages Act, pits the interests of Quebec against those of francophones in Canada.
In closing, the francophone communities of Canada have good reason to care about the existence of the court challenges program and to hope that it will be around permanently because it advances their language rights. That is the main reason the Bloc Québécois is not calling for the program to abolished. Rather, we are asking for it to be regulated and modernized.
There are some good things about the court challenges program, but it falls into the official languages trap. This would not be an issue if the Liberal Party and the NDP were willing to accept the solution proposed by the Government of Quebec and the Bloc Québécois, which is to use a differentiated approach in the implementation of the Official Languages Act, or in other words, to stop putting both official languages on equal footing.
If the Liberal government recognizes that only one of the two official languages is at risk—
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- May/3/23 9:49:28 p.m.
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- Re: Bill S-6
Madam Speaker, if the member wants to understand why certain provinces such as P.E.I. have very different representation in the Senate, he should probably pick up the Constitution and have a look at it. Perhaps that will help to inform him on that.
To be honest, the last 30 or 45 seconds of his discussion were probably the most passionate of his entire 20-minute speech. He seemed to speak a lot about how much he is in favour of the bill and rhetorically speak about the need or lack of need for a lot of the regulations.
Conservative after Conservative have indicated their support for this. I wonder if the member can inform the House as to when we might be able to get on with the vote on it. If he could do that and at the same time spare me the rhetoric of needing every Conservative to represent their constituents and speak to this specific bill, that would be great too.
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