Francophones have help from commissioner of official languages for court challenge

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Commissioner of official languages Graham Fraser.  Photo: Jean-Marc Carisse

The Fédération des communautés francophones et acadienne du Canada (FCFA) is taking the federal government to court over its dismantling of the Court Challenges Program.

The FCFA filed an affidavit back in September. The organization is headed to court on January 21 and 22, 2008.

Commissioner of official languages Graham Fraser is ready to go to court to argue that the government’s action is in violation of the Official Languages Act.

“We do this quite regularly,” explained Fraser. “We do have a legal team – it’s one of the powers that we have that are spelled out in the act. We can either take legal action ourselves or seek from the court to intervene when somebody else is taking an issue in front of the courts.”

Fraser decided that the best way to handle this case was to intervene while the issue was being debated, rather than wait for the federal government to respond.

“If we waited the 120 days before taking our own action, the first test of the meaning of the amended legislation would be taking place with our sitting on the sidelines,” said Fraser. “We thought it was sufficiently important that we be involved in this first test of the new amended Part VII [of the Official Language Act], that we would seek leave to intervene.” Fraser added, “Our investigation concluded that there was a negative impact on minority language communities. It is essential that we make our voice heard.”

FCFA president Lise Routhier-Boudreau said, “The decision of the commissioner of official languages to intervene in our court action is undeniably a big support. In his final investigation report on the impact of the September 2006 budget cuts, [Graham] Fraser has noted that the elimination of the Court Challenges Program constitutes a violation of the commitments under Part VII of the Official Languages Act. We are very pleased to see him take such a decisive measure in line with that conclusion.”

During his investigation, Fraser commissioned a legal study to look at the impact of the cut.

“I was a little bit taken aback at the first indication of the government’ s position when we came out with our preliminary report, but subsequent to that, the government was being consistent with the decision it took,” said Fraser. From here on in, he said, “I expect that it will be in the context of the courts that the government’s response will be heard. At the time of the speech from the throne, when the government announced that it was going to renew the [official languages] action plan, people asked me, ‘Were you expecting some kind of announcement?’ No. We had our own process. It will be in the context of that that the dialogue will take place.”

For the commissioner, the road is clear. “That’s the nature of this job: deciding what language rights really mean,” offered Fraser.

“When the act was amended, providing some teeth, it was imposing a legal obligation on the government to take positive measures [when it comes to official minority language communities]. It was inevitable that at some point the courts would be called upon to define what the range of this amendment would be,” explained Fraser. “Even before I took this job, I always thought that the major challenge of the first part of my mandate would be to give some meaning of this new amendment to the law. One of the ways in which in our system the meaning of legislation gets defined is though interpretation by the courts.”

Back in Quebec, the Quebec Community Groups Network (QCGN), the FCFA’s English-language counterpart, and Voice of English-speaking Québec (VEQ) are watching the debate.

“I think that the court challenges program is an extremely important program for the official minorities and it is too bad that it was cut,” said Helen Walling, executive director of VEQ. “We strongly believe in advocacy. It’s really important to fight for the CCP and to support the francophones fighting it.”

The Quebec Community Groups Network (QCGN) is the FCFA’s anglophone rights counterpart, but it has fewer resources to put toward a court case, according to its president, Bob Donnelly.