Notes for an appearance before the House of Commons Standing Committee on Justice and Human Rights

Ottawa, Ontario, April 21, 2016
Graham Fraser - Commissioner of Official Languages

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Mr. Chair, members of the Committee, good morning.

I am pleased to appear before your committee today to present my position on establishing a new Court Challenges Program.

In short, I applaud the government’s decision to create a new Court Challenges Program, and I recommend that the Program’s mandate be extended to fund cases involving court proceedings that seek to clarify and ensure respect for the language rights guaranteed under the Official Languages Act and other federal statutes.

When I was appointed to my position nearly 10 years ago, the Court Challenges Program had just been eliminated, and so I started this job with numerous complaints already waiting for me. Following an investigation, my office concluded that the complaints were founded. The proceedings filed by the Fédération des communautés francophones et acadiennes (FCFA) in 2007 ended in an out-of-court settlement in June 2008 and resulted in the development of the new Language Rights Support Program in September 2009.

The investigation, which included a study of the legal impact of eliminating the Court Challenges Program, led me to at least two conclusions that I believe should be brought to your attention:

  • First, not only has the Court Challenges Program had a direct and significant impact on clarifying and advancing language rights in Canada, it has also helped to enhance the vitality and development of our official language minority communities.
  • Second, even when rights are clear or language obligations have been clarified by the courts; institutions may still fail to meet them for a number of reasons, such as government inaction, or ineffective or inadequate action. In these cases, the only effective means the communities have to force the governments to act is to go to court or threaten to go to court.

I think that this last finding justifies expanding the scope of the new program on two fronts. On the one hand, the new program should fund not only cases that would clarify language rights and obligations, but also cases that would ensure those rights and obligations were met. On the other hand, the program should also fund cases to ensure that the language rights guaranteed under the Official Languages Act and other federal statutes are respected.

During my 10 years in office, I have been able to gain a full understanding of the effort and costs associated with initiating court proceedings. In fact, in 2010, I sought a court remedy to clarify CBC/Radio-Canada’s obligations under the Official Languages Act.Footnote 1 One of the complainants involved in the case was not eligible for funding from the Language Rights Support Program and had to be represented by counsel pro bono. In two other casesFootnote 2 in which complainants initiated the proceedings, the complainants said that had it not been for my decision to act as co-appellant before the Supreme Court of Canada, they would not have been able to appeal the Federal Court of Appeal’s judgment. Although the Official Languages Act allows me to intervene in legal proceedings initiated by complainants, they are the ones who are primarily responsible for pursuing the litigation and submitting the necessary evidence, which in many cases is a significant burden for people who are seeking justice in terms of their language rights.

In other words, the language rights that are guaranteed under the Canadian Charter of Rights and Freedoms and the Official Languages Act, including the right to apply for a court remedy, are only theoretical and illusory if groups and individuals cannot access the courts to have them enforced because of the costs associated with bringing a case before trial-level courts.

Therefore, when developing the new program, the government should ensure that the funding granted for legal recourse is appropriate and sufficient to finance not only litigation involving language rights, but also interventions that enable the courts to hear other voices and perspectives.

I also think that the permanence and independence of the new program are key factors that must guide the government in choosing the program’s governance, management framework and decision-making structure. This is also the opinion of other witnesses including FCFA, the Quebec Community Groups Network (QCGN) and the Canadian Bar Association. The proposal submitted by FCFA and QCGN—about creating the program through legislation and establishing a foundation that must report annually to Parliament—is particularly relevant. The same is true of their recommendation regarding Parliament’s appointing the members of the Board of Directors and the committee that reviews funding applications.Footnote 3

Since its creation in 1978, the Court Challenges Program has played a vital role in advancing equality rights guaranteed under the Constitution Act, 1867 and the Canadian Charter of Rights and Freedoms. As we approach the 150th anniversary of Confederation, Canadians should be able to proudly celebrate the development of a program that helps provide access to justice and advance their constitutional and quasi-constitutional rights.


Footnote 1

Canada (Commissioner of Official Languages) v CBC/Radio-Canada (2012).

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Footnote 2

DesRochers v Canada (Industry) (2009) ; and Thibodeau v Air Canada (2014).

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Footnote 3

Fédération des communautés francophones et acadienne resolution CA-15-R036 on modernization and reinstatement of the Court Challenges Program.

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