On the Order:

Resuming debate on the inquiry of the Honourable Senator Chaput, calling the attention of the Senate to the Program to Support Linguistic Rights, the importance of ensuring public financing of court actions that seek to create a fair and just society and to the urgent need for the federal government to re-establish the Court Challenges Program.

Senator Gagné: I am taking part today in the inquiry launched by Senator Maria Chaput on the Program to Support Linguistic Rights. Senator Chaput drew the attention of the Senate to this subject last December, following the decision made by the newly elected government to restore the Court Challenges Program. I rise today to speak to this matter because there have been relevant developments since the inquiry was launched. I believe it would be useful and pertinent for the Senate, as the house of Parliament charged with protecting minorities, to be made aware of this new information.

First, we should note that the last federal budget tabled in the spring of 2016 provided $5 million a year in funding for the Court Challenges Program. The Standing Committee on Justice and Human Rights of the other place also decided, on February 23, to conduct a multi-phase study on access to justice, with the first phase consisting of a study of the Court Challenges Program.

My intention is not to dwell on each and every recommendation in the report, but rather to raise the principles underlying the recommendations that are particularly meaningful to us here in the Senate. I think it's important to reiterate the absolute importance of this program, as well as encourage reflection about its contents and terms and conditions.

First, the House of Commons Standing Committee on Justice and Human Rights recommends, in section D of its report, expanding the scope of the program relative to its most recent iteration. In the last three recommendations regarding the renewed Court Challenges Program, the committee recommends also allowing funding for challenges based on federal laws, such as the Official Languages Act, and of course funding for challenges based on the linguistic obligations set out in other federal laws. That is recommendation.

It also recommends funding for challenges based on section 7 of the Canadian Charter of Rights and Freedoms in support of equality rights cases on a stand-alone basis. That is recommendation.

Furthermore, the committee recommends funding for the challenging of provincial and territorial laws, providing that the cases are national in scope and impact. That is recommendation. I believe that expanding the scope is a positive step, since any request for funding would be examined very carefully to determine its importance and the relevance of the cause.

Another one of the committee's recommendations, the second one, raises some doubts in my mind. The committee recommends that the program be, and I quote:

. . . an independent and autonomous entity . . .

. . . housed in a federal government department or agency, such as the Canadian Human Rights Commission.

The committee also added:

Issues related to capacity, accessibility and public perceptions of independence must be taken into account in determining the appropriate department or agency.

I believe that this proposal should be given further consideration. Can the government really house a program that provides funding for litigation against it?

I am happy that the Senate or the Standing Senate Committee on Legal and Constitutional Affairs will most likely be called upon to consider these issues in the near future when it examines the terms and conditions of a new Court Challenges Program.

I would particularly like to draw your attention to a specific aspect of the program that was mentioned in this study and that I believe affects the purpose of the Senate. All of the stakeholders and the committee recognize the importance of ensuring the sustainability of the program. The committee noted that, since its creation in the late 1970s, the Court Challenges Program has been cancelled twice and its administration was relocated a number of times.

It is also important to note that the implementation of the current Language Rights Support Program, or LRSP, is the result of an out-of-court settlement between the government and the Fédération des communautés francophones et acadienne, following the government's decision to abolish the Court Challenges Program. Let's not forget that the media often refers to this program as "the oft-cancelled Court Challenges Program."

The committee recommends enshrining the Court Challenges Program in legislation in order to enhance its sustainability and ensure that any government seeking its cancellation would require the approval of Parliament. Senator Chaput proposed the same thing in her speech on this inquiry in December 2015, citing legal expert Michel Doucet. I fully support this proposal. The reinstatement of such a program, which affects the exercise and advancement of Charter rights, warrants an act of Parliament. The issue must be examined by both chambers. We must not forget that the Court Challenges Program was abolished as a result of a minister's decision, without a vote in Parliament.

The committee rejects the idea of enshrining the Court Challenges Program in the Constitution because of the inherent complications of making changes to the Constitution, as well as the idea of giving this program a foundation with its own endowment fund, because of the significant costs associated with it. The committee acknowledges that simply enacting legislation is not a perfect solution because one statute can be undone by another. Honourable colleagues, I would say that this is where the Senate has a specific role to play.

If, indeed, a Court Challenges Program reinstated by an act of Parliament is one day under threat of being eliminated by a new bill, I believe that it might be up to our chamber to ensure that reason is heard and that the government, regardless of its political ideology, recognize the importance of this right that citizens have not only to use the courts to clarify and expand their rights, but also to have the necessary resources to do so.

The right to justice cannot be relegated to theory alone. The government, as a guarantor of peace, order, and good governance, must ensure that access to justice can be achieved in practice. The Court Challenges Program is not a panacea, but it is still essential.

You understand, honourable senators, how I might fear the legislative agenda of a government that would put obstacles in the path of those seeking access to our courts.

The final annual report of the Court Challenges Program, that of 2006-07, before the program was abolished, explained it as follows:

Charter rights and freedoms must be significant and purposeful. As guardians of the Constitution, courts alone are entitled to determine the scope and significance of these rights and freedoms. If affected parties cannot use courts, then what is left of access to justice or the protection of our fundamental rights and freedoms?

With very few exceptions, any legal action taken against the government is quite lopsided. Very few litigants have the financial resources needed to stand up to the government. This is especially true in the case of vulnerable individuals who want to raise a Charter challenge to denounce some form of discrimination. How can anyone justify wanting to deprive these litigants of financial support in those circumstances? Does this not reveal some degree of insecurity regarding the quality of the laws being challenged? This should be enough to give the Senate pause, especially since this chamber is meant to protect the interests of Canada's minorities.

Some Hon. Senators: Hear, hear!