The court challenges program is an underestimated tool

Photo courtesy of Senate of Canada

We recently learned that the English Montreal School Board received funding through the Court Challenges Program (CCP) in support of its proceedings to contest Quebec’s Bill 21, An Act respecting the laicity of the State. The media widely reported the Quebec government’s criticism of this funding, but reporters unfortunately provided little information regarding its importance for official language minority communities.

I therefore think it is vital here to review certain omissions relating to the CCP, especially about the crucial role it has played, and continues to play, in ensuring respect for language rights and the vitality of French in Canada.

The CCP came about in the context of a challenge to Bill 101 in Quebec and the Forest case in Manitoba in the late ’70s. Originally intended for language rights, the CCP was expanded to include equality rights. In the last 40 years, the survival of the CCP has been severely tested: cancelled the first time in 1992 by then-prime minister Brian Mulroney, it was reinstated in 1994 and finally abolished in 2006 by the Harper government.

This last cut spurred the Fédération des communautés francophones et acadienne du Canada, with the support of other organizations, to take legal action against this decision. The parties then reached an out-of-court settlement leading to the creation of the Language Rights Support Program, which came into being in 2009. As its name suggests, that program targeted language rights only and was funded by the government until 2017. As of its implementation in January 2019, the new CCP now includes funding for cases based on the Official Languages Act (OLA) and reinstates the equality rights section within the program.

In addition to the CCP’s independence, which has been pointed out time and time again, we must understand its mandate in order to discern its relevance. The CCP offers funding to Canadians to support them during their legal proceedings for cases of national significance engaging constitutional or quasi-constitutional official language or human rights. At the heart of this mandate is access to justice, a concept that is sorely lacking in this country.

Everyone knows that the Canadian justice system is virtually inaccessible to the average citizen; parties quickly go through vast sums of money and are subject to great pressure. The CCP is clearly an asset to the judicial system by virtue of helping to ensure access to justice for cases of potential national significance and involving constitutional rights.

A cursory review of the case law sheds light on the impact of the CCP on language rights. It undoubtedly allowed for not only the clarification and interpretation of these rights, but also their implementation for all official language minority communities throughout Canada.

Consider for instance the Mahe case, which established that section 23 of the Canadian Charter confers upon official language minority communities the right to the management and control of schools. Recall as well the Arsenault-Cameron case, which revisited this right of management and control, specifying that it includes the power of these communities to determine the optimal location for the school.

In addition to cases setting out major legal principles, there are others, such as the Paulin matter, that recognized the RCMP’s obligation to provide services in both official languages throughout New Brunswick and that constitute another example of how the CCP makes a concrete difference for citizens.

In Ontario, who can say for sure that the Franco-Ontarian community would have retained Montfort, the francophone hospital, or reached an agreement for the Université de l’Ontario français without the CCP?

In its final report on the views of Canadians regarding modernizing of the OLA, the Senate Committee on Official Languages recommended that the language rights component of the CCP and its funding be enshrined in the new OLA.

This recommendation echoes the many comments heard on the need to promote access to justice, the CCP’s turbulent history and its positive effects for the vitality of official language communities. The goal is to ensure some continuity for the program, such that any future government wishing to abolish it must proceed by way of legislative action, thereby requiring an additional level of transparency.

The political climate surrounding the debate on the CCP and the lack of nuance in the information provided by certain analysts prevent Canadians from fully understanding the merits of this tool.

Let us join together in recognizing the mission and positive impact of this tool for official language minority communities and the vitality of French in Canada.

Senator René Cormier represents New Brunswick in the Senate.

This article was published inthe February 14, 2020, edition of Le Droit (in French only).

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