COURT CHALLENGES PROGRAM OF CANADA

PROGRAMME DE CONTESTATION JUDICIARE DU CANADA

ANNUAL REPORT 2001-2002

The year 2002 marks the 20th anniversary of The Canadian Charter of Rights and Freedoms. The Canadian Constitution, in which the Charter was incorporated, sets out each and every Canadian's fundamental equality rights and official language minority rights.

The Court Challenges Program is a unique and important program of the federal government, which provides financial assistance for important court cases that clarify and advance language and equality rights guaranteed under Canada's Constitution, including the Charter.

Canada is at the forefront of those countries, which provide human rights protection, in the clarification, definition and advancement of equality rights and official language minority rights. The Court Challenges Program is unique in the world and we believe that this program is one of the reasons that the Canadian recognition of equality and language rights has advanced so significantly in the past two decades. The Court Challenges Program of Canada is very proud of its role in supporting many of the gains made under the Constitution and the Charter. Indeed, all Canadians have much to be proud of in this regard; the fact that our equality rights and language rights have progressed considerably has resulted in the courts of many other countries looking to our own courts' decisions for assistance when deciding important rights questions within their borders.

As Canadians develop a better understanding of their own and others' rights, our communities, including those which have experienced disadvantage and exclusion, benefit from a more mature and inclusive society, one that is based on equal and mutual respect and consideration.

The Court Challenges Program of Canada/Programme de contestation judiciaire du Canada is funded by the Department of Canadian Heritage of the Government of Canada.

The following individuals contributed to the preparation of this report:

Sharryn Aiken, Noël Badiou, Michael Bergman, André Braën, Claudyne Bienvenu, Ronald Bisson, Patrick Case, Theresa Tait-Day, Sandra DiCurzio, John Fisher, Murielle Ouellette-Gagné, Micheline Gleixner, Richard Goulet, Déogratias Habimana, Danielle Hince, Martha Jackman, Sarah Lugtig, Leslie MacLeod, Bonnie Morton, Estella Muyinda, Ken Norman, Ken Oh, André Ouellette, Yvonne Peters, Dianne Pothier, Céline Sevald, Louise Somers, Kathleen Tansey and Chantal Tie.

Editing: Institut Joseph Dubuc, Doug Smith

Translation: Claire Mazuhelli

Layout and Design: The Art Department

ISBN # 1-896894-14-3

For further information, please contact

The Court Challenges Program of Canada/

Programme de contestation judiciaire du Canada

294 Portage Avenue, Room 616

Winnipeg, Manitoba R3C 0B9

Telephone: (204) 942-0022

Fax: (204) 946-0669

Web Site: http://www.ccppcj.ca

Electronic Mail: info@ccppcj.ca

Copyright 2002

TABLE OF CONTENTS

MESSAGE FROM THE CHAIR

MESSAGE FROM THE EXECUTIVE DIRECTOR

PART I - ADMINISTRATION

Program Structure and Composition

Board of Directors

Panel Selection Committees

The Equality Rights Panel Selection Committee

The Language Rights Panel Selection Committee

Panels

The Equality Rights Panel

The Language Rights Panel

The Membership

New Equality Members

New Language Members

New Associate Members

Advisory Committees

The Equality Advisory Committee

The Language Advisory Committee

Staff

Annual General Meeting

Program Priorities and Planning

Assisting Applicants

Encouraging Strategic Litigation and Information Sharing

Outreach for Applications

Developing public, political and financial support for long-term funding and mandate expansion

Organizational support and development

Audited Financial Statements

PART II - EQUALITY RIGHTS PROGRAM HIGHLIGHTS

Introduction - Equality Rights Test Cases

Criminal Law

Racism

Defences

Social and Economic Benefits

Immigration

Family Law

National Defence

Federal employment

Federal Taxation

Federal Elections

Projects, Negotiations and Impact Studies

Program Promotion and Access Projects

Impact Studies

Negotiations

List of Authorities

PART III - LANGUAGE RIGHTS PROGRAM HIGHLIGHTS

Introduction

Minority Language Education Rights

Right to governance

Trial court's right to retain jurisdiction

Language of Work, Communication and service delivery

The RCMP's linguistic obligations

Territorial governments' linguistic obligations

Section 16.1 of the Charter and the equality rights of both linguistic communities in New Brunswick

Société des Acadiennes et Acadiens du Nouveau Brunswick - Regional Health Authorities Act

Language Rights and Freedom of Expression

Judicial Rights

Legislative Bilingualism

Unwritten (underlying) constitutional principle of protection for minorities

Projects, Negotiations and Impact Studies

Program Promotion and Access Projects

Impact Studies

Negotiations

Conclusion

List of Authorities

PART IV - STATISTICAL HIGHLIGHTS

Equality Program

Language Program

PART V - RESOURCES

Annual Reports

Brochures

Papers

Court Challenges Web Site

MESSAGE FROM THE CHAIR

On behalf of the Board of Directors, I am very pleased to present you with the eighth Annual Report of the Court Challenges Program of Canada. This Report provides an overview of the activities undertaken and funded by the Court Challenges Program over the past year. As you can see, it has been an exciting and productive year, notwithstanding the fiscal restraints that have challenged almost every part of the Program. Both the Language and Equality Rights Panels have had to make increasingly difficult funding choices in the face of an increased number of applications. Similarly, the Board and committees have had to curtail their activities and have been unable to fund important new initiatives, such as the proposed member newsletter. Despite these challenges, the Program has continued to play a major role in enabling equality rights organizations and minority official language communities to challenge discriminatory laws and practices, an activity essential to the building of a fairer Canadian society, one that truly celebrates and values our country's diversity.

The importance of the Program in translating the dream of an egalitarian society into reality cannot be underestimated. In recent years, national and international agendas, under the influence of economic globalization, have focused on privatization, deregulation and a reduced role for governments. There has been a governmental retreat from the provision of basic social services, a withdrawal from the funding of social housing, slashed social assistance payments with tightened eligibility requirements, reduced or eliminated legal aid, and the privatization of a range of previously publicly funded services.

As the social condition of historically disadvantaged and marginalized communities has deteriorated, the response has been to criminalize the resulting social problems by prosecuting the homeless, street youth, those on social assistance and those with mental health problems. As a response to inequality, the use of incarceration and the criminal law not only violates basic human rights, but is also the most expensive alternative available.

For members of official linguistic minority communities in Canada, the downsizing of governments has occurred against a background of decreasing linguistic minority populations. As assimilation accelerates, the struggle by minority linguistic communities to preserve and enhance rights related to education, judicial rights and access to services and work becomes ever more important. Expanding the Program's ability to fund challenges regarding the positive obligations of the federal and other governments will be an important enhancement of the Program.

Members of historically disadvantaged communities: gays and lesbians, women, aboriginal communities, minority language communities, racialized minorities and disabled Canadians need the benefit of state support and public programs and services to fight inequality. The dismantling of the public programs that enhance and promote equality, including economic equality, presents official minority language and equality-seeking communities with their biggest challenge. This, coupled with the withering of legal aid services nationally, only serves to emphasize the importance of the work of the Court Challenges Program.

External challenges have dominated the Board's agenda this past year, as we have worked with Canadian Heritage on our second program evaluation and review, essential to the renewal of our funding agreement. At the same time, we have tried to push ahead on mandate expansion, to permit the Program to fund challenges to provincial legislation, an expansion which has been made all the more urgent by the downloading of services to the provinces and the erosion of social and economic rights at that level. The long-term goals of the Program to achieve funding stability through the creation of an endowment fund, and to expand the Program's mandate on both the language and equality side, have been the major preoccupations of the Board this past year. The Board plans to devote the coming year to continued work on these two important initiatives.

I must admit, it was with some trepidation that I agreed to step into Melina Buckey's position as Chair of the Program last year. Her outstanding leadership and commitment over many years and her always sage and informed counsel, make filling Melina's shoes particularly difficult. I can only say that the support I have had from all parts of the Program and, in particular, the hard work and always-willing hand of Noël Badiou have made the transition possible.

In closing, I would like to recognize and extend my gratitude to the members of the Board, staff, Panels and Advisory Committees for all their hard work, dedication and support. The countless volunteer hours contributed by the Board, Panels and Committee members is truly a testament to both the importance and relevance of the Program. When coupled with the work of our talented and dedicated staff, it is truly inspirational.

Chantal Tie

Chair of the Board of Directors

MESSAGE FROM THE EXECUTIVE DIRECTOR

It is with great pleasure that I write this short note about our important Program and my small part in ensuring its efficient and continued operation.

Le Programme de contestation judiciaire du Canada/The Court Challenges Program of Canada is a unique and progressive program. No other country has developed such a program that provides access to justice for those marginalised and disadvantaged individuals and groups as is the case in our country. We have much to be proud of, as witnessed by the recognition our Program has received from various United Nations committees.

I began working with the Program on May 28, 2001. The first few months were spent absorbing and understanding a significant amount of information. In this regard, I wish to thank Sarah Lugtig, Stacy Nagle and Richard Goulet who graciously provided invaluable help and support during those early months and beyond including guidance in the filling in for people on leaves.

Some highlights of our work in the past year included the planning for the evaluation and renewal of the Program in 2002/03 as well as efforts made towards the mandate expansion project and the Court Challenges Fund project. The Program also saw both its manual and electronic filing systems re-organised with a view to streamlining the input and access of information.

There is, however, much work yet to be done. I expect that the 2002/03 fiscal year to be dominated by the ancillary work required for the evaluation of the Program followed by discussions and negotiations with the Department of Heritage regarding the Program's renewal.

In closing, I would like to thank the members of the Board of Directors, Panels and Advisory Committees and staff for their support and trust. I am proud to be associated with the people involved with the Court Challenges Program. They are dedicated and committed to the goal of clarifying and advancing equality and language rights contained in the Canadian Charter of Rights and Freedoms and other constitutional provisions so that all Canadians can equally participate in and benefit from Canadian society.

Noël A. J. Badiou

Executive Director

PART I ADMINISTRATION

1. Program Structure and Composition

2. Annual General Meeting

3. Program Priorities and Planning

4. Audited Financial Statements

1. Program Structure and Composition

The Court Challenges Program is a national non-profit corporation whose mandate is to advance constitutional rights and freedoms related to equality and official language rights by providing financial assistance for test cases of national significance.

A national Board of Directors, whose members serve on a volunteer basis, oversees the management of the Program. The Board establishes a number of Committees to assist it in carrying out its functions.

The Program's core function is to consider applications for funding and provide funding to successful applicants. Two independent panels of experts, the Language Panel and the Equality Panel, make the funding decisions. An independent Panel Selection Committee, appointed by the Board, appoints members of both Panels.

There are four categories of Court Challenges Program corporation members: Equality Members, Language Members, Director Members and Associate Members. At the Annual General Meeting the membership conducts the Program's corporate business, including the election of Board members. The membership groups have established an Equality Advisory Committee and a Language Advisory Committee. These Committees provide information on Program-related issues of interest to their members and advice to the Board on policy issues throughout the course of the year.

Staff at the Court Challenges Program office in Winnipeg supports the work of the Board, the committees and panels.

The following section sets out the composition and activities of these entities and the staff members who support them. It is also an opportunity to recognize the important contribution all these individuals make towards carrying out the Program's mandate.

1.1 Board of Directors

The Board of Directors is responsible for the administration of the Court Challenges Program, including budget, human resources management, establishing policies, and long and short-term plans for the effective operation of the Program.

There are seven positions on the Board of Directors. Two Directors are elected by the Equality members; two Directors are elected by the Language Members; one Director is nominated by the Law Faculties and Bar Associations across Canada; and the chairperson or one co-chairperson of each of the Equality Panel and the Language Panel is appointed a Director. At the Annual General Meeting, the Program Members confirm the appointments of the Directors. Directors hold office for three years or until their successors are appointed and confirmed.

The 2001-2002 Board of Directors consisted of:

- Chair -(April-October) Representative of the Law Faculties/Bar Associations, Melina Buckley (British Columbia), a lawyer specializing in legal research and policy development and an author and speaker on federal law reform, constitutional law, equality issues and access to justice;

- Chair - (October-March) Representative of Equality Members, Chantal Tie (Ontario), Executive Director of the South Ottawa Community Legal Services; adjunct professor of Immigration and Refugee Law; and member of various equality-seeking groups. She is a former Co-Chair of the National Legal Committee for the Women's Legal Education and Action Fund.

- Vice-Chair and Co-Chair of the Equality Panel - (April-November) Shelagh Day and (November-March) Patrick Case;

- Vice-Chair and Chair of the Language Panel - Ronald Bisson;

- Treasurer and Representative of the Language Members - Louise Somers (New Brunswick) a lawyer and notary in private practice in Saint Quentin and past president of the Association des juristes d'expression française du Nouveau Brunswick;

- Representative of Language Members - (April-September) Suzanne Birks (Québec), former President and Executive Director of the Canadian Human Rights Foundation and presently Research Director in the firm of O'Reilly Mainville & Associates, where she specializes in administrative law, international trade, intellectual property, arbitration and employment and (November-March) Michael Bergman (Québec), lawyer in private practice with Bergman and Associates in Montréal with expertise in minority language issues particularly as they relate to Québec;

- Representative of Equality Members - (April-September) Burnley "Rocky" Jones (Nova Scotia) a lawyer in the firm of B.A. "Rocky" Jones and Associates. He is a founding member of numerous peace and civil rights movements including the Black United Front of Nova Scotia, the National Black Coalition of Canada, Dalhousie Transition Year Program, Dalhousie Law School Indigenous Blacks and Mi'kmaq Program, African Canadian Liberation Movement, and the Nova Scotia Project and Kwacha House and (December-March) Bonnie Morton (Saskatchewan) experienced anti-poverty advocate with the Regina Anti-Poverty Ministry and Chair of both the Charter Committee on Poverty Issues and the National Anti-Poverty Organization;

- Representative of the Law Faculties/Bar Associations (November-April) - Ken Norman (Saskatchewan), professor with the University of Saskatchewan in Saskatoon and author of various reports on human rights, labour relations, administrative and constitutional law.

1.2 Panel Selection Committees

The Program solicits nominations for new Panel members from its members and other community groups. An Equality Panel Selection Committee reviews nominations and appoints members to the Equality Panel. Similarly, a Language Panel Selection Committee selects Language Panel Members.

1.2.1 The Equality Panel Selection Committee

In 2001-2002, the Equality Panel Selection Committee was composed of the following persons:

- Akua Benjamin (Ontario) - Professor of Social Work at Ryerson Polytechnic University;

- William Black (British Columbia) - Professor of Law at the University of British Columbia;

- Nitya Iyer (British Columbia) - Associate Professor of Law at the University of British Columbia and former Member of the British Columbia Human Rights Tribunal;

- Lucie Lamarche (Québec) - Professor of Law at the Université de Québec à Montreal;

- Gérald Miller (Québec) - lawyer and disability rights activist (April-September);

- Amy Go (Ontario) - activist with racial minority and women's communities in Toronto (February-March)

1.2.2 The Language Panel Selection Committee

In 2001-2002, the Language Panel Selection Committee was composed of the following persons:

- Marc Cousineau (Ontario) - Professor of Law at the University of Ottawa (Common Law Section) and Director of the Canadian Centre for Linguistic Rights;

- Gérard Lévesque (Ontario) - lawyer and member of the Association des juristes d'expression française de l'Ontario;

- Guy Matte (Ontario) - Executive Director of the Association des enseignants et enseignantes franco-ontariens;

- Raymond Poirier (Manitoba) - Director of the Association des municipalités bilingues du Manitoba;

- Eric Sutton (Québec) - lawyer in private practice with the firm Girouard, Peris, Goldenberg, Pappas and Sutton.

1.3 Panels

1.3.1 The Equality Panel

The Equality Panel reviews funding applications and makes all decisions regarding case and project funding that involve equality rights test cases. Each of its seven members brings to the Panel expertise in equality and human rights issues as well as considerable experience with a broad range of equality-seeking groups.

In 2001-2002, the Equality Panel was composed of the following individuals:

- Patrick Case, Co-Chair (Ontario) - lawyer and director of the University of Guelph's Human Rights and Equity Office, with extensive experience in family, refugee and immigration law and knowledge about equity, human rights and personal harassment matters;

- Shelagh Day, Co-chair (British Columbia) - human rights advocate in Vancouver, President and senior editor of the Canadian Human Rights Reporter, and author of articles and studies on equality rights of disadvantaged groups (April-November);

- Leslie MacLeod Co-chair (November-March) (Newfoundland) - adult educator, community development worker, social researcher, technical writer, consultant, advocate, community and board member in the disability, mental health and women's movements;

- Claudyne Bienvenu (Québec) legal analyst for the Québec Human Rights Tribunal and author of numerous studies on human rights, young offenders and refugees;

- Theresa Tait-Day, (British Columbia) - hereditary chief of the Witsyweten First Nation, consultant on legal issues affecting Aboriginal peoples through community advocacy and consulting work for various levels of government in (August-March);

- Martha Jackman (Ontario) - Professor of Law (French Common Law Section) at the University of Ottawa and author of numerous studies on constitutional rights issues with a particular focus on social rights, poverty and women's equality;

- Sharon McIvor (British Columbia) - member of the Lower Nicola Band, practicing member of the Law Society of British Columbia, professor of Aboriginal Law and author of numerous articles on Aboriginal women's rights, Aboriginal self-determination and gender equality in the legal profession (April-August);

- Yvonne Peters (Manitoba) - lawyer and consultant for governments, community groups, labour unions and corporations on the impact of human rights legislation and the Charter and the advancement of human rights.

The Court Challenges Program received a total of 134 applications for equality-related cases and projects during this fiscal year. In 2001-2002, the Panel granted funding for 77 applications in the following categories:

- Case Development

Number of Cases 18

Amount of Money Granted $113 398

Percent of Total 23.4

- Case Funding

Number of Cases 31

Amount of Money Granted $1 405 523

Per cent of Total 40.3

- Impact Studies

Number of Cases 6

Amount of Money Granted $50 700

Per cent of Total 7.7

- Program, Promotion and Access and Negotiation

Number of Cases 22

Amount of Money Granted $244 536

Percent of Total 28.6

1.3.2 The Language Panel

The Language Panel reviews funding applications and makes all decisions regarding case and project funding related to language rights test cases. Its five members have expertise in language rights and official language minority communities in Canada.

In 2001-2002, the Language Panel was composed of the following individuals:

- Ronald Bisson Co-Chair (Ontario) - a private management consultant who has worked with various French-language minority communities outside of Québec as Director General of the Fédération des jeunes canadiens-français and as a teacher in Manitoba's French language schools;

- Annette Boucher (Nova Scotia) - a lawyer and prothonotary of the Nova Scotia Supreme Court/registrar of the Nova Scotia Court of Appeal, who has also been both advocate and legal counsel for francophone groups working for the establishment of quality French first-language education in Nova Scotia (April-November);

- André Braën, (Ontario) - a lawyer and professor with the University of Ottawa who has extensive knowledge, experience and expertise with language rights (November-March);

- Sylvie Léger, Co-Chair (Ontario) - a lawyer and former Adjunct Professor and Director of the Canadian Centre for Linguistic Rights at the University of Ottawa (April-November);

- Micheline Gleixner, (New Brunswick) - a lawyer with McInnes Cooper in Moncton who has a particular interest in language rights (November-March);

- André Ouellette, (Alberta) - a lawyer with Ouellette Rice in Calgary who has an interest in language rights (May-March); and

- Kathleen Tansey (Québec) - a practicing lawyer who specializes in labour law, member of the Québec and Ontario Bar Associations and a former teacher in Montreal.

The Court Challenges Program received 42 applications for support for language-related cases and projects during this fiscal year. In 2001-2002, the Language Panel granted funding for 31 applications in the following categories:

- Case Development

Number of Cases 7

Amount of Money Granted $24 843

Percent of Total 22.5

- Case Funding

Number of Cases 15

Amount of Money Granted $537 779

Percent of Total 48.4

- Impact Studies

Number of Cases 3

Amount of Money Granted $14 608

Percent of Total 9.7

- Program, Promotion and Access and Negotiation

Number of Cases 6

Amount of Money Granted $14 608

Percent of Total 19.4

1.4 The Membership

On April 1, 2001, the Court Challenges Program's membership was composed of 64 Equality Members and 16 Language Members. During the 2001-2002 fiscal year, the following organizations became new members:

1.4.1 New Equality Members

Together Against Poverty

Sudbury Women's Centre des Femmes

United Chinese Community Enrichment Services Society

Peer Support Services for Abused Women

Trans/Action

L'Association Québécoise des étudiants ayant des incapacités au postsecondaire

1.4.2 New Language Members

Québec Community Groups Network

Les comités de parents du Nouveau Brunswick

1.4.3 New Associate Members

Alliance des Communautés Culturelles pour l'Égalité dans la Santé et les Services Sociaux

Regroupement des Organismes des Sourds du Québec

Groupe d'aide et d'information sur le harcèlement sexuel au travail

1.5 Advisory Committees

The two categories of members have each established an Advisory Committee. The Advisory Committees meet on an as-needed basis to discuss issues of mutual interest related to the Program and to assist the Board of Directors. A representative of each Advisory Committee participates in meetings of the Board of Directors in a non-voting capacity.

1.5.1 Equality Advisory Committee

In 2001-2002, the Equality Advisory Committee consisted of the following organizations and persons:

African Canadian Legal Clinic - Margaret Parsons

Association multiculturelle francophone de l'Alberta - Igor César

Canadian Association of Elizabeth Fry Societies - Natalie Duhamel

Canadian Institute of Islamic Studies - Dr. Yaqoob Kahn

Charter Committee on Poverty Issues - Bonnie Morton

December 9 Coalition - Monika Chappell (mandate expired in November 2001)

Equality for Gays and Lesbians Everywhere - John Fisher

Minority Advocacy and Rights Council - Indra Singh

National Association of Women and the Law - Kim Brooks

National Indo Canadian Council - Pravin Varma (mandate expired in November 2001)

PEI Council of the Disabled - Barry Schmidl (mandate began in November 2001)

Québec Native Women's Association - Debbie Thomas

Trans/Action - Caroline White (mandate began in November 2001)

Women's Legal Education and Action Fund - Sondra Gibbons

Indra Singh and John Fisher represented the Equality Advisory Committee at meetings of the Board of Directors during this fiscal year.

The Equality Advisory Committee has established a number of sub-committees to work on specific issues. The following sub-committees were active in the past fiscal year:

- Information insert Sub-Committee

- Poverty Issues Sub-Committee

- Race Issues Sub-Committee

- Working with Lawyers Sub-Committee

- Ad-hoc Committee on Transgender issues

1.5.2 Language Advisory Committee

In 2001-2002, the Language Advisory Committee consisted of the following organizations and individuals:

Alliance Québec - Stephen Schenke

Commission nationale des parents francophones - Murielle Gagné-Ouellette

Fédération des associations de juristes d'expression française de common law - Jean-Paul Boily

Fédération des communautés francophones et acadienne du Canada - François Boileau

Jean-Paul Boily and Murielle Gagné-Ouellette represented the Language Advisory Committee at meetings of the Board of Directors during this fiscal year.

1.6 Staff

In 2001-2002, the Court Challenges Program employed eight individuals. The position of Executive Director was vacant from March to May and the Board Chair at the time, Melina Buckley, filled the position on an off-site acting basis during the search for a permanent director.

The new Executive Director, Noël Badiou, took office at the end of May 2001. Additional staff changes included the resignation of Stacy Nagle, the Financial Office Manager in November to pursue a position with the Manitoba Bar Association. In January of 2002, the Program hired Mariel Venzky as the new Financial Office Manager. All employees took on additional duties during these transitional times and their dedication and work were very much appreciated.

2. Annual General Meeting

The National Consultation and Annual General Meeting were held in Ottawa, November 23-25, 2001. Approximately 80 individuals participated in these two meetings.

This year, the National Consultation focused on the role of court remedies in Charter litigation. The plenary sessions and workshops led to productive discussions amongst Program members, which will assist members in their work.

The National Consultation also provided an excellent forum for the Program to reach out to organizations that are new to the Program and to provide the orientation required to assist them in the development of funding applications.

The Board, Panels and Advisory Committees reported to the membership about the previous year's activities.

One of the main topics for discussion at the 2001 Annual General Meeting was the budgetary challenges facing the Program. With the increased costs of travel and other items in the budget, the Board was obliged to reduce costs by reducing the number of meetings for itself and the Advisory Committees. It was noted that the Board is requesting an increase in funding for the next contribution agreement with Canadian Heritage.

During this 2001 Annual General Meeting, Ken Norman was appointed as the representative of the Law Faculties/Bar Associations and Michael Bergman was appointed as one of the two representatives of the Language Members. Professor Norman is a law professor with the University of Saskatchewan in Saskatoon and author of various reports on human rights, labour relations, administrative and constitutional law. Mr. Bergman is a lawyer in private practice with Bergman and Associates in Montréal with expertise in minority language issues particularly as they relate to Québec.

Finally, a number of tributes were made for departing Board members Melina Buckley, Rocky Jones and Suzanne Birks; departing Equality Panel members Shelagh Day and Sharon McIvor; departing Language Panel members Sylvie Léger and Annette Boucher; departing Equality Advisory Committee members Monika Chappell, Pravin Varma, Margaret Denike and Kerri Froc, as well as the staff member Stacy Nagle. The Program was very appreciative of their efforts and dedication and wished them the best of luck in their future endeavours.

3. Program Priorities and Planning

During the 2001-2002 year, the Court Challenges Program continued to work on the five priority areas identified during our strategic planning process:

- Assisting Applicants

- Encouraging Strategic Litigation and Information-Sharing

- Outreach for Applications

- Developing public, political and financial support for long-term funding and mandate expansion

- Organizational support and development.

Progress in each of these areas is a shared responsibility among the Program's committees, panels, and staff. The following provides an overview of progress made in each of these areas over the past year.

3.1 Assisting Applicants

The priority for improving assistance to applicants has been the development of a new information kit. The revised kit was prepared by staff and has been field tested. The new kit is now available.

3.2 Encouraging Strategic Litigation and Information-Sharing

The Program's main opportunities for encouraging strategic litigation and information-sharing are at its national consultation and in meetings with members and other groups throughout the year.

Over the course of the last few years, the Program has reviewed other potential mechanisms for achieving this objective. During the past year, an electronic "charter watch" was initiated and further progress was made in establishing a Œfactum' bank through our website. In addition, work has progressed in developing an accessible electronic communication tool for sharing information relevant to strategic litigation.

The Equality Advisory Committee launched the first Œinformation insert' entitled "The Equality Advocate" for the 2001 Annual General Meeting. The insert was well received and members are looking forward to the next edition.

A working committee of the Equality Advisory Committee continued to work on a handbook to assist lawyers and community groups who wish to work together on equality rights litigation.

Following the adoption of a revised confidentiality and information sharing policy in 1999, the Board of Directors followed up on its commitment to review the policy once it had been in operation for two years. After carefully reviewing the policy, the Board made a few minor changes to the wording of the policy, but confirmed the revisions made in 1999.

3.3 Outreach for Applications

In 2001-2002, the Court Challenges Program staff, Panel and Board members made presentations to over 25 equality-seeking and official language minority groups in various locations across Canada. Staff developed a speaker's kit to facilitate presentations about the Program's work by Panel, Committee and Board members, to be finalised in 2002.

3.4 Developing public, political and financial support for long-term funding and mandate expansion

During the past year, the Program continued with its efforts for the establishment of a Court Challenges Fund. In view of the delays encountered, the Board refocused its efforts and revised the plan for achieving mandate expansion and long-term financial stability. The Program hopes to initiate this campaign in the next fiscal year.

3.5 Organizational support and development

The vast majority of the Program's functions relate to the day-to-day work of facilitating the application process, ensuring timely consideration of applications, managing the over 428 equality files and 93 language files, fulfilling reporting requirements to Canadian Heritage and so forth. An additional task in the past year has been the implementation of the new membership provisions through the development of new application forms and revision of our membership lists in accordance with these changes.

4.0 Financial Statements

The following are the Program's audited financial statements for the year ended March 31, 2002. The statements consist of four main items:

1. The Balance Sheet - contains a breakdown of each fund.

2. The Statement of Operations and Fund Balances - provides a detailed list of monies received, transferred and disbursed in each funding category.

3. Notes to the Financial Statements

- Note 1 includes information about the incorporation of the Program and its Contribution

Agreement.

- Note 2 explains each of the funds, how they are accounted for and how the revenue is

allocated between restricted and unrestricted funds.

- Note 3 explains how capital assets are recorded.

- Note 4 provides the breakdown between equality and language rights in each of the funds.

- Note 5 shows the Program's commitments, which include Panel commitments and the Program's lease commitment.

4. Schedule of Operating Expenses - shows the revenue and the expenses for the Program's administrative monies.

- audited financial statements

Price Waterhouse Coopers

Chartered Accountants

One Lombard Place

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Telephone +1 (204) 926-2400

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May 24, 2002

AUDITORS' REPORT

To the Board of Directors of Court Challenges Program of Canada

Programme de contestation judiciaire du Canada

We have audited the balance sheet of Court Challenges Program of Canada -Programme de contestation judiciaire du Canada as at March 31, 2002 and the statement of operations and fund balances for the year then ended. These financial statements are the responsibility of management. Our responsibility is to express an opinion on these financial statements based on our audit.

We conducted our audit in accordance with Canadian generally accepted auditing standards. Those standards require that we plan and perform an audit to obtain reasonable assurance whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation.

In our opinion, these financial statements present fairly, in all material respects, the financial position of Court Challenges Program of Canada - Programme de contestation judiciaire du Canada as at March 31, 2002 and the results of its operations and changes in its financial position for the year then ended in accordance with generally accepted accounting principles.

Price Waterhouse Coopers

Chartered Accountants

COURT CHALLENGES PROGRAM OF CANADA

PROGRAMME DE CONTESTATION JUDICIAIRE DU CANADA

BALANCE SHEET

ASSETS - As at MARCH 31, 2002

CASH -- Operating Fund ($64,317)

CASH -- Litigation Fund $503,295

CASH -- Programs and Promotion Access Fund and Negotiation Fund $95,819

CASH -- Case Development Fund $101,964

CASH -- Impact Studies Fund $21,759

CASH -- Total for 2002 $663,520

CASH total for 2001 $139,409

ASSETS - MARCH 31, 2002 continued

ACCOUNTS RECEIVABLE -- Operating Fund $168,552

ACCOUNTS RECEIVABLE -- Litigation Fund $17,790

ACCOUNTS RECEIVABLE -- Programs and Promotion Access and Negotiation Fund $1,544

ACCOUNTS RECEIVABLE -- Case Development Fund $1,134

ACCOUNTS RECEIVABLE -- Impact Studies Fund $549

ACCOUNTS RECEIVABLE -- Total for 2001 $189,569

ACCOUNTS RECEIVABLE total for 2000 $486,989

ASSETS - MARCH 31, 2002 continued

PREPAID EXPENSES -- Operating Fund $7,310

PREPAID EXPENSES -- Litigation Fund $-

PREPAID EXPENSES -- Programs and Promotion Access and Negotiation Fund $-

PREPAID EXPENSES -- Case Development Fund $-

PREPAID EXPENSES -- Impact Studies Fund $-

PREPAID EXPENSES -- Total for 2001 $7,310

PREPAID EXPENSES total for 2000 $7,310

SUB-TOTALS OF CASH, ACCOUNTS RECEIVABLE AND PREPAID EXPENSES:

SUB-TOTAL -- Operating Fund $111,545

SUB-TOTAL -- Litigation Fund $521,085

SUB-TOTAL -- Programs Promotion AND Access and Negotiation Fund $97,363

SUB-TOTAL -- Case Development Fund $108,098

SUB-TOTAL -- Impact Studies Fund $22,308

SUB-TOTAL -- for 2001 $860,399

SUB-TOTAL for 2000 $633,708

CAPITAL ASSETS (NOTE 3)

CAPITAL ASSETS -- Operating Fund $33,482

CAPITAL ASSETS -- Litigation Fund $ -

CAPITAL ASSETS -- Program Promotion and Access and Negotiation Fund $-

CAPITAL ASSETS -- Case Development Fund $-

CAPITAL ASSETS -- Impact Studies Fund $-

CAPITAL ASSETS - Total for 2002 $33,482

CAPITAL ASSETS total for 2001 $12,766

ASSETS -- TOTAL

TOTAL -- Operating Fund $145,027

TOTAL -- Litigation Fund $521,085

TOTAL -- Program Promotion and Access and Negotiation Fund $97,363

TOTAL -- Case Development Fund $108,098

TOTAL -- Impact Studies Fund $22,308

TOTAL -- 2002 -- $893,881

TOTAL for 2001 $646,474

LIABILITIES - MARCH 31, 2002

ACCOUNTS PAYABLE AND ACCRUED LIABILITIES

ACCOUNTS PAYABLE AND ACCRUED LIABILITIES -- Operating Fund $31,640

ACCOUNTS PAYABLE AND ACCRUED LIABILITIES -- Litigation Fund $-

ACCOUNTS PAYABLE AND ACCRUED LIABILITIES -- Program Promotion and Access and Negotiation Fund $ -

ACCOUNTS PAYABLE AND ACCRUED LIABILITIES -- Case Development Fund $-

ACCOUNTS PAYABLE AND ACCRUED LIABILITIES -- Impact Studies Fund $-

ACCOUNTS PAYABLE AND ACCRUED LIABILITIES -- Total for 2002 -- $31,640

ACCOUNTS PAYABLE AND ACCRUED LIABILITIES total for 2001 $56,279

FUND BALANCES -- EXTERNALLY RESTRICTED (NOTE 4)

EXTERNALLY RESTRICTED -- Operating Fund $ -

EXTERNALLY RESTRICTED -- Litigation Fund $521,085

EXTERNALLY RESTRICTED -- Program Promotion and Access and Negotiation Fund $97,363

EXTERNALLY RESTRICTED -- Case Development Fund $108,098

EXTERNALLY RESTRICTED -- Impact Studies Fund $22,308

EXTERNALLY RESTRICTED -- Total for 2002 -- $748,854

EXTERNALLY RESTRICTED total for 2001 $502,027

FUND BALANCES -- INVESTED IN CAPITAL ASSETS

INVESTED -- Operating Fund $33,482

INVESTED -- Litigation Fund $ -

INVESTED -- Program Promotion and Access and Negotiation Fund $-

INVESTED -- Case Development Fund $ -

INVESTED -- Impact Studies Fund $ -

INVESTED -- Total for 2002 -- $33,482

INVESTED total for 2001 -- $12,766

FUND BALANCES -- UNRESTRICTED

UNRESTRICTED -- Operating Fund $79,905

UNRESTRICTED -- Litigation Fund $ -

UNRESTRICTED -- Program Promotion and Access and Negotiation Fund $ -

UNRESTRICTED -- Case Development Fund $ -

UNRESTRICTED -- Impact Studies Fund $ -

UNRESTRICTED -- Total for 2002 -- $79,905

UNRESTRICTED total for 2001 -- $75,402

SUB-TOTAL LIABILITIES

SUB-TOTAL -- Operating Fund $113,387

SUB-TOTAL -- Litigation Fund $521,085

SUB-TOTAL -- Program Promotion and Access and Negotiation Fund $97,363

SUB-TOTAL -- Case Development Fund $108,098

SUB-TOTAL -- Impact Studies Fund $22,308

SUB-TOTAL - Sub-Total for 2002 -- $862,241

SUB-TOTAL for 2001 -- $590,195

TOTAL LIABILITIES

TOTAL -- Operating Fund $145,027

TOTAL -- Litigation Fund $521,085

TOTAL -- Program Promotion and Access and Negotiation Fund $97,363

TOTAL -- Case Development Fund $108,098

TOTAL -- Impact Studies Fund $22,308

TOTAL - Sub-Total for 2002 -- $893,881

TOTAL for 2001 -- $646,474

STATEMENT OF OPERATIONS AND FUND BALANCES

For the Year ended March 31, 2002

Operating Fund - 2002

Revenue -

Contributions - Government of Canada, Canadian Heritage $650,000

Interest $21,610

Human Resource development $3,609

Total $675,219

Expenses -

Operating (Schedule) $629,735

Programs Delivery $-

Total $629,735

Excess of Revenue over expenses (expenses over revenue) for the year $45,484

Interfund transfers ($20,265)

Fund balance (beginning of year) $88,168

Fund balance, end of year $113,387

Operating Fund - 2001

Revenue -

Contributions - Government of Canada, Canadian Heritage $650,000

Interest $34,035

Human Resource development $2,772

Total $686,807

Expenses -

Operating (schedule) $686,807

Programs Delivery $-

Total $706,282

Excess of Revenue over expenses (expenses over revenue) for the year ($19,475)

Interfund transfers $-

Fund balance (beginning of year) $107,643

Fund balance, end of year $88,168

RESTRICTED FUNDS

Litigation Fund

Revenue -

Contributions - Government of Canada, Canadian Heritage $1,653,164

Interest $-

Human Resource development $-

Total $1,653,164

Expenses -

Operating (Schedule) $-

Programs Delivery $1,459,068

Total $1,459,068

Excess of Revenue over expenses (expenses over revenue) for the year $194,096

Interfund transfers $20,265

Fund balance (beginning of year) $306,724

Fund balance, end of year $521,085

Program Promotion and Access and Negotiation Fund

Revenue -

Contributions - Government of Canada, Canadian Heritage $321,065

Interest $-

Human Resource development $-

Total $321,065

Expenses -

Operating (Schedule) $-

Programs Delivery $327,145

Total $327,145

Excess of Revenue over expenses (expenses over revenue) for the year ($6,080)

Interfund transfers $-

Fund balance (beginning of year) $103,443

Fund balance, end of year $97,363

Case Development Fund

Revenue -

Contributions - Government of Canada, Canadian Heritage $156,800

Interest $-

Human Resource development $-

Total $156,800

Expenses -

Operating (Schedules) $-

Programs Delivery $104,815

Total $104,815

Excess of Revenue over expenses (expenses over revenue) for the year $51,985

Interfund transfers $-

Fund balance (beginning of year) $56,113

Fund balance, end of year $108,098

Impact Studies Fund

Revenue -

Contributions - Government of Canada, Canadian Heritage $10,000

Interest $-

Human Resource development $-

Total $10,000

Expenses -

Operating (Schedule) $-

Programs Delivery $23,439

Total $23,439

Excess of Revenue over expenses (expenses over revenue) for the year ($13,439)

Interfund transfers $-

Fund balance (beginning of year) $35,747

Fund balance, end of year $22,308

Total 2002

Revenue -

Contributions - Government of Canada, Canadian Heritage $2,141,029

Interest $-

Human Resource development $-

Total $2,141,029

Expenses -

Operating (Schedule) $-

Programs Delivery $1,914,467

Total $1,914,467

Excess of Revenue over expenses (expenses over revenue) for the year $226,562

Interfund transfers $20,265

Fund balance (beginning of year) $502,027

Fund balance, end of year $748,854

Total 2001

Revenue -

Contributions - Government of Canada, Canadian Heritage $1,581,382

Interest $-

Human Resource development $-

Total $1,581,382

Expenses -

Operating (Schedule) $-

Programs Delivery $1,827,838

Total $1,827,838

Excess of Revenue over expenses (expenses over revenue) for the year ($246,456)

Interfund transfers $-

Fund balance (beginning of year) $748,483

Fund balance, end of year $502,027

Court Challenges Program of Canada - Programme de contestation judiciaire du Canada

Notes to Financial Statements

March 31, 2002

1 Incorporation and contribution agreement

Court Challenges Program of Canada - Programme de contestation judiciaire du Canada is a corporation incorporated without share capital under Part II of the Canada Corporations Act. The Corporation's objective is to clarify the constitutional rights and freedoms related to equality rights and official language rights by providing financial assistance for test cases of national significance. The Corporation is non-taxable under Section 149 of the Income Tax Act.

The Corporation entered into a contribution agreement with the Government of Canada on March 31, 1998 which sets out terms and conditions governing the administration of the Corporation for the period April 1, 1998 to March 31, 2003.

During fiscal 2001, the corporation was granted registered charity status retroactive to April 1, 2000.

2 Significant accounting policies

Fund accounting

The Corporation follows the restricted method of accounting for contributions.

Operating Fund

The Operating Fund accounts for the Corporation's administrative activities and reports unrestricted resources and operating grants.

Litigation Fund

The Litigation Fund reports restricted resources that are to be used to provide financial assistance for litigation expenses incurred for language and equality cases of potential national significance.

Program Promotion and Access and Negotiation Fund

The Program Promotion and Access and Negotiation Fund reports restricted resources that are to be used for activities which promote awareness of, access to, or capacity to use the Program and provide financial assistance to individuals or organizations for negotiating expenses incurred to resolve disputes.

Case Development Fund

The Case Development Fund reports restricted resources that are to be used to provide financial assistance to develop potential language or equality, test cases.

Notes to Financial Statements

March 31, 2002

Impact Studies Fund

The Impact Studies Fund reports restricted resources that are to be used to provide financial assistance for the preparation of impact studies of important court decisions relevant to litigation under the Program.

Revenue recognition

Restricted contributions related to general operations are recognized as revenue of the Operating Fund in the year the expenses are incurred. All other restricted contributions are recognized as revenue of the appropriate restricted fund.

Unrestricted contributions are recognized as revenue of the Operating Fund in the year received or receivable if the amount to be received can be reasonably estimated and collection is reasonably assured.

Investment income is recognized on an accrual basis as revenue of the Operating Fund.

Capital assets

Capital assets are recorded at cost. Amortization is provided over the estimated useful lives of the related assets, using the following methods and rates:

Computer equipment 5 year straight-line, no residual value

Furniture and equipment 5 year straight-line, no residual value

Cash flows

A statement of cash flows has not been included as it would not provide any additional meaningful information.

3 Capital assets

2002

Computer Equipment

Cost $97,460

Accumulated amortization $74,753

Furniture and equipment

Cost $50,694

Accumulated amortization $40,219

Total cost $148,154

Total accumulated amortization $114,672

Net book value $33,482

2001

Computer Equipment

Cost $79,976

Accumulated amortization $69,093

Furniture and equipment

Cost $41,274

Accumulated amortization $39,391

Total cost $121,250

Total accumulated amortization $108,484

Net book value $12,766

4 Externally restricted fund balances

Categories of externally imposed restrictions on net assets are allocated as follows:

Equality rights

Litigation Fund $151,570

Program Promotion and Access and Negotiation Fund $46,949

Case Development Fund $96,207

Impact Studies Fund $23,141

Total (2002) $307,734

Total (2001) $308,435

Language rights

Litigation Fund $369,515

Program Promotion and Access and Negotiation Fund $50,414

Case Development Fund $11,891

Impact Studies Fund ($833)

Total (2002) $441,120

Total (2001) $193,592

Grand totals

Litigation Fund $521,085

Program Promotion and Access and Negotiation Fund $97,363

Case Development Fund $108,098

Impact Studies Fund $22,308

Total (2002) $748,854

Total (2001) $502,027

5 Commitments

The Corporation's Equality and Language Rights Panels have approved commitments as follows:

Equality rights

Commitments approved by Panels

Litigation $1,405,523

Program Promotion and Access and Negotiation $244,536

Case development $113,398

Impact studies $50,700

Total $1,814,157

Language rights

Commitments approved by Panels

Litigation $537,779

Program Promotion and Access and Negotiation $71,410

Case development $24,843

Impact studies $14,608

Total $648,640

Grand total for equality rights and language rights $2,462,797

2002 -- Disbursements paid $1,914,467

Sub-total $548,330

Restricted cash ($727,837)

Future commitments to be funded by contributions $-

2002 Totals

Commitments approved by Panels

Litigation $1,943,302

Program Promotion and Access and Negotiation $315,946

Case development $138,241

Impact studies $65,308

Grand total for equality rights and language rights $2,462,797

Disbursements paid $1,914,467

Sub-total $548,330

Restricted cash ($727,837)

Future commitments to be funded by contributions $-

The Corporation has an operating lease commitment for office premises at an annual cost of $26,873 for a term that expires on April 15, 2003.

Schedule of Operating Expenses

For the year ended March 31, 2002

Advertising 2002 - $1,948 2001 - $7,239

Annual meeting 2002 - $10,788 2001 - $10,051

Audit fees 2002 - $5,616 2001 - $5,401

Bank charges 2002 - $810 2001 - $602

Board members' lost wages 2002 - $800 2001 - $750

Depreciation 2002 - $6,189 2001 - $16,538

Facilities 2002 - $28,069 2001 - $25,682

Insurance 2002 - $4,328 2001 - $4,328

Legal fees 2002 - $30 2001 - $1,510

Office equipment and maintenance 2002 - $6,737 2001 - $7,139

Panel members' fees 2002 - $10,625 2001 - $16,500

Photocopying and printing 2002 - 9,517 2001 - $9,901

Postage 2002 - $6,797 2001 - $8,562

Public relations and outreach 2002 - $9,462 2001 - $18,453

Research material 2002 - $6,496 2001 - $6,646

Salaries and benefits 2002 - 416,904 2001 - $417,675

Supplies 2002 - $4,217 2001 - $12,346

Telephone and fax 2002 - $12,157 2001 - $15,049

Translation and interpretation 2002 - $19,178 2001 - $30,816

Travel and meetings 2002 - $69,031 2001 - $91,094

TOTAL 2002 - $629,735 2001 - $706,282

PART II - EQUALITY RIGHTS PROGRAM: HIGHLIGHTS

2.0 Introduction - Equality Rights Test Cases

The Equality Rights Panel granted funding to a party and/or intervener(s) in a number of exciting test cases which were before the courts this year. Below is a short description of a number of these challenges. In keeping with the Program's obligation to respect the confidentiality of all applicants, only public information about the cases is provided, and this, with the permission of the applicants involved. The following pages show how inequality arises for diverse groups and communities in many areas of federal law or policy.

2.1 Criminal Law

2.11 Racism

R. v. Mankwe

Mr. Mankwe was accused of sexual assault, forcible confinement and assault. He and the alleged victim are both African-Canadian. During the jury selection process for his trial, Mr. Mankwe wished to question potential jurors about their racial prejudices and their ability to be impartial judges in his case. The trial judge refused his request, noting that racism likely does exist in all provinces, but that Mr. Mankwe also needed to bring evidence to the court to prove that anti-Black racism exists in Montréal. The judge further noted that the complainant (victim) was also African-Canadian. The Québec Court of Appeal agreed with the trial judge. At the Supreme Court of Canada, however, the government conceded that such racism does exist. As a result, on October 2, 2001, the Supreme Court of Canada allowed Mr. Mankwe's appeal and ordered a new trial.

R. v. Golden

Mr. Golden, also an African-Canadian man, had been subjected to a strip search in a public restaurant while being arrested for possession of cocaine. Mr. Golden was unsuccessful at trial in having evidence obtained from the search excluded under sections 8 (to be protected from unreasonable searches) and 24 (the right to have evidence excluded) of the Charter, on the basis that it had been obtained through an unreasonable and, therefore, unconstitutional search. As a result, he was convicted of the crime. The Ontario Court of Appeal rejected his appeal. On December 6, 2001, in a 5 to 4 decision, the Supreme Court of Canada granted his appeal, overturned his conviction and acquitted him of the crime.

Interveners African Canadian Legal Clinic (ACLC) and Aboriginal Legal Services of Toronto (ALST) urged the Court to adopt an approach to the right under section 8 of the Charter that reflects equality values and, therefore, addresses the racism that African and Aboriginal Canadians have experienced in dealings with the police and the risk faced by members of these communities of being unfairly targeted for harmful and degrading public treatment by agents of the state on the basis of race. At paragraph 83, the Court noted, "the negative effects of a strip search can be minimized by the way in which they are carried out, but even the most sensitively conducted strip search is highly intrusive. Furthermore, we believe it is important to note the submissions of the ACLC and the ALST that African Canadians and Aboriginal people are over represented in the criminal justice system and are therefore likely to represent a disproportionate number of those who are arrested by police and subjected to personal searches, including strip searches. As a result, it is necessary to develop an appropriate framework governing strip searches in order to prevent unnecessary and unjustified strip searches before they occur."

2.12 Defences

Canadian Foundation for Children, Youth and the Law v. Canada

Canadian Foundation for Children, Youth and the Law (CFCYL) received funding for this appeal in which it challenged section 43 of the Criminal Code. Section 43 provides parents and teachers with a special defence from an assault charge if they use corporal punishment on children within their care, provided that "the force does not exceed what is reasonable under the circumstances". CFCYL argues that this defence violates children's rights under not only section 15 (equality) but also sections 7 (life, liberty and security of the person) and 12 (freedom from cruel and unusual punishment) of the Charter. Such a defence does not exist if one uses physical force against adults without their consent. The Ontario Court of Appeal dismissed CFCYL's appeal of an unfavorable trial decision on January 15, 2002. The Court was prepared to find that section 43 violates section 15 of the Charter. However, they were of the view that the law, if applied in an appropriately restrictive manner, is clearly justified under section 1. (Section 1 allows the government to place reasonable limits on constitutional rights.) The Court agreed with the government that parents and teachers need to use carefully limited corrective force at times to teach and care for children and should be able to do so without facing criminal sanctions. CFCYL has appealed this decision to the Supreme Court of Canada.

2.2 Social and Economic Benefits

Périgny v. Canada

Lyne Périgny taught for many years in Pointe-Lévy, Québec. After the birth of her child, she moved to join her spouse and was not in the paid work force for one year while she took care of the baby. When she attempted to re-enter the labour force, she could only find short-term employment which failed to qualify her for unemployment benefits under the concept of "new entrant or re-entrant" in the Unemployment Insurance Act. She has brought a section 15 (equality) challenge to paragraph 6(3) of the Unemployment Insurance Act and the relevant sections of the Unemployment Insurance Regulations, which set a higher eligibility threshold of weeks worked for persons who have been out of the paid labour force for a certain period of time. She argues that these result in sex discrimination because women's child care and household responsibilities both make them likely to be absent from the paid labour force more often than men and make them more vulnerable to unstable work (temporary, part-time etc.) when they do rejoin the paid labour force. As a result, the provisions in question disadvantage women more than they do men. While this challenge concerns legislation which has now been replaced by the Employment Insurance Act, the issue continues to be relevant as the new legislation continued the concept of "new entrant or re-entrant" and the higher eligibility threshold.

The Umpire, Justice Marin, who is the highest level decision maker within the Unemployment Insurance regime, gave his decision on May 28, 2001. He rejected Ms Périgny's case on the basis that she had not proven the disproportionate impact of the provisions on women. He accepted that women likely experience the effects described by Ms Périgny and her expert witnesses, but concluded that he cannot say with certainty that this is the case. Also, while he agreed that women do bear a higher burden of responsibility for child care and that this makes them more vulnerable in employment, he believed that this impact is not caused by the law, but rather by choices made by the couples involved. As the father could just as easily choose to withdraw from the paid work force to care for an infant, the provisions in question do not create sex discrimination. Ms Périgny has appealed this decision to the Federal Court of Appeal.

Bear v. Canada (Attorney General)

Ms Bear was denied the right to pay into the Canada Pension Plan (CPP) from its inception in 1966 until 1988 because she was a person with Indian status who lived and worked on a reserve during those years. On December 7, 1988, the federal government amended the Canada Pension Plan Regulations to allow persons with Indian status who were employed on reserves to participate in the CPP, if these persons were Canadian residents, and the employer opted into the plan. Faced with a much lower pension than if she had been allowed to contribute to the Plan during her 22 years of employment with her Band council office, Ms Bear tried in 1992 to pay her CPP premiums retroactively. The federal government refused. She then asked the Federal Court to overturn this decision, saying that the restriction violated both her constitutional right to equality under the Charter and her right to be free from discrimination as protected in the Canadian Bill of Rights. In its decision of November 1, 2001, the court reasoned that Ms Bear's Charter section 15 rights (equality) had been violated on the basis of race and that this violation was not justified under section 1 of the Charter. Nonetheless, the judge found that the Charter probably did not apply to the restriction because it mostly affected her before 1985, the year section 15 became law. The court preferred to find that the refusal to accept Ms Bear's retroactive contributions violated the Canadian Bill of Rights and, on this basis, found in her favour. The federal government has appealed this decision before the Federal Court of Appeal.

2.3 Immigration

Deol v. Canada (Minister of Citizenship and Immigration)

Ms Deol asked the Federal Court to overturn a decision of the Immigration and Refugee Board refusing her application to sponsor her father‹who has a physical disability‹and other family members to immigrate to Canada. The Board had considered her father to be "medically inadmissible" under paragraph 19 (1) (a) (ii) of the Immigration Act, which allows the government to bar the sponsorship of a family member where it is believed that he or she will place an excessive demand on health care services once in Canada. Ms Deol argues that section 19 of the Act violates the equality provision of the Charter on the basis that it discriminates against persons with disabilities. In its decision of June 22, 2001 reviewing the Board's decision, the Federal Court disagreed. It appeared to find that Ms Deol could not raise her father's section 15 (equality) Charter rights. The court also appeared to conclude that her father was not denied entry into Canada on the basis of his disability, but, rather, due to falling within a class of persons whose admission "would cause or might reasonably cause excessive demands on health or social services." As a result, the court found that section 15 was not engaged in this case. The Federal Court of Appeal affirmed the trial level decision on June 21, 2002, concluding at paragraph 56 that "the fact that Ms. Deol is the child of a parent who has been refused a visa because of a medical condition that is expensive to treat does not reflect adversely on her individual worth or otherwise violate her human dignity."

Mack v. Canada

Federal immigration law and policy which was in effect from the late 1880's to the 1940's resulted in immigrants from China having to pay an exorbitant "head tax" to immigrate and eventually being prohibited completely from immigrating to Canada from China. The people who started this class action argued that the repeal of the acts without remedying any of their resulting and ongoing discriminatory effects violates section 15 (equality) of the Charter. The head tax payers and their families also argue that the government was "unjustly enriched" by these policies and that the Charter does not allow the government to hold on to a benefit today that was obtained from a discriminatory and racist law even if that law was repealed before the Charter came into effect.

In its decision of July 9, 2001, responding to a preliminary motion by the federal government to dismiss this case before it is heard by the court, the Ontario Superior Court of Justice recognized that the direct and indirect consequences of acts of discrimination may well last a lifetime and extend to subsequent generations. However, it found that the predominating act of discrimination in this case ended with the repeal of the latest of the discriminatory laws, which happened long before the Charter came into existence. As Mr. Mack proposed to apply the Charter retrospectively to pre-Charter laws, the court found that he could not go forward with the case on behalf of the larger group. Mr. Mack and the others have appealed this decision to the Ontario Court of Appeal. They argue that they should have their day in court on the many important issues raised in the case.

2.4 Family Law

EGALE Canada Inc. v. Canada

In this case, the British Columbia Supreme Court rejected two applications by a number of same-sex couples as well as the advocacy organization, Equality for Gays and Lesbians Everywhere (EGALE), for a court declaration that any law that prohibits same-sex couples from marriage is an unjustified infringement of section 15 (equality) of the Charter. In dismissing this case on October 2, 2001, Justice Pitfield found that when the framers of Canada's Constitution Act 1867 gave the federal government law making power as regards "marriage", they meant marriage to include only opposite-sex unions. Any federal law which defined marriage differently (i.e. to include same-sex unions) would be stepping outside the boundaries of this federal law making power and, therefore, akin to amending the constitution. According to the judge, Parliament simply cannot do so without recourse to the official constitutional amendment process.

Justice Pitfield did, however, consider whether the exclusion of same sex couples from marriage violates section 15 of the Charter. Finding that it did, he then nonetheless concluded that the discrimination was justified under section 1 of the Charter. In his view, the federal government had two valid reasons for discriminating in this way: 1) that the limitation is justified by the restrictive reference to marriage in the Constitution itself; and 2) that marriage remains the primary means by which humankind perpetuates itself. As a result, he concluded that the federal government is justified in affording recognition and preference only to opposite sex couples in the institution of marriage. The couples and EGALE have appealed this decision to the British Columbia Court of Appeal. The Program has provided funding both to EGALE and to the intervener, Coalition of Canadian Liberal Rabbis for Same-sex Marriage.

Boston v. Boston

Mr. and Mrs. Boston divorced in 1991 after a 36-year marriage during which Mrs. Boston had primary responsibility for raising their seven children, while Mr. Boston pursued a career in education and supported the family financially. Upon divorce, Mr. Boston agreed to pay spousal support to his former spouse in the amount of $3,200.00 per month. They also split the value of the family assets, a significant portion of which was made up of Mr. Boston's accumulated pension entitlement. Three years later, when Mr. Boston retired and started to receive his pension, he sought to reduce the spousal support payments considerably, on the basis that most of his income (which was now approximately $8,000.00 per month) was now from a pension that had already been considered when the marital property was split upon divorce. He was successful before the initial judge, who reduced his support payment to $950.00. However, the Ontario Court of Appeal revised the amount up to $2,000.00 per month, basing its decision solely on the needs and capacity to pay of the ex-spouses.

On July 12, 2001, the Supreme Court of Canada reinstated the initial judge's decision to reduce the spousal support payment significantly. A majority of the Justices on the court found that, as a general principle, former spouses should not be able to "double dip" in these circumstances, that is, to benefit twice from an asset that was considered when the marital property was divided upon divorce. Madame Justice L'Heureux-Dubé and Justice LeBel did not agree with their colleagues on the Court. In their view, (at paragraph 105):

"any order of support must address both the consequences of the marriage and of its breakdown. It must rest on an assessment of the needs and means of the parties and it should acknowledge the need to compensate the spouse who stayed home, worked there and gave up any idea of a career and the economic independence it allows."

The Women's Legal Education and Action Fund (LEAF) received funding from the Program to intervene in this important case to ensure that women's unpaid contribution to marriages and families as well as the negative social and financial impact of divorce on women be taken into account by the court in its decision.

2.5 National Defence

Liebmann v. Canada (Minister of National Defence)

In this appeal before the Federal Court of Appeal, Lieutenant Liebmann argued that the refusal to appoint him as executive assistant to the Commander of the Armed Forces Task Force in the Middle East during the Gulf War constituted discrimination on the basis of religion contrary to section 15 of the Charter (equality). The only reason he was not appointed is that he is Jewish. In his court case, Lieutenant Liebmann challenged the Canadian Forces Administrative Order (CFAO) 20-53, which foresees the possibility that certain personnel may be restricted from participating in peacekeeping operations due to the "cultural, religious or other sensitivities of the parties or host country." Based on certain limits as regards the facts of the case and the evidence before the court, it was not willing to consider the constitutionality of CFAO 20-53 or any other past or current Armed Forces policies, which allow religion to be taken into account in this way. That being said, the Federal Court of Appeal did find on July 31, 2001, that the actual decision not to post Lieutenant Liebmann to the position on the basis of his religion violated section 15 of the Charter and was not justified under section 1.

Both Lieutenant Liebmann and the intervener, B'nai Brith Canada, received funding for this appeal.

2.6 Federal Employment

Perera v. Canadian International Development Agency

November 2001 witnessed the successful settlement of Doctor Perera's 9-year court case against the Canadian International Development Agency (CIDA) in which he challenged the race-based discrimination he had experienced while working at CIDA, relying on his equality rights in section 15 of the Charter. Doctor Perera not only received individual cash compensation, court costs, a written apology, and a significant promotion, he also secured CIDA's agreement to put in place an Employment Equity plan and to increase the hiring of candidates from racialized groups.

Lavoie v. Canada

At issue in this appeal was whether the preference given to Canadian citizens in open competitions for employment in the federal Public Service infringes section 15 of the Charter (equality). In the Supreme Court of Canada's decision of March 8, 2002, six out of the nine justices found that the provisions of the Public Service Employees Act were constitutional. However, two did so on the basis that the preference given citizens did not violate section 15 of the Charter. The other four concluded that while the law violated section 15, it was a reasonable limit on these rights and, therefore, permitted to stand under section 1 of the Charter. The three remaining justices of the nine would have struck down the law as an unjustified infringement of the non-citizens' right to equality.

The only point where there is agreement among a majority of the court is that the policy violates section 15 by singling out a vulnerable group, non-citizens, for differential treatment in government employment. Those justices who upheld the law under section 1 found that the objective of making citizenship beneficial so as to encourage permanent residents to become citizens was a valid reason for the preferential treatment of citizens. They noted further that most permanent residents eventually become citizens unless they make a conscious choice not to.

The Court Challenges Program provided funding to some of the women who brought this case forward as well as the intervener, Centre for Research Action on Race Relations.

2.7 Federal Taxation

Simser v. Canada

Scott Simser is a deaf lawyer who, in 1997, while a law student enrolled in Ontario's bar admission course, received a Special Opportunities Grant for Students with Permanent Disabilities in the amount of $2,000.00. This grant is a Canada Study Grant authorized by the federal legislation and regulations that govern post-secondary student loans and bursaries. He needed the funding to obtain American Sign Language interpretation for his participation in the bar admission course that year. In the year he received the grant he reported it on his income tax form but did not include it in his income for the purposes of calculating the tax he owed. When Revenue Canada (now the Canada Customs and Revenue Agency) reassessed his tax return in 1999, it included most of the grant as income on the basis that it is a "bursary" which is defined as taxable income in the Income Tax Act. He is challenging this interpretation and/or definition as violating the equality rights of students with disabilities. He argues that to characterize a grant which is there to cover costs arising due to barriers to accessing educational programs for students with disabilities in the same way for tax purposes as scholarships, bursaries or prizes which cover costs that all students face, has a disproportionate negative impact on students with disabilities and, therefore, violates section 15 of the Charter (equality). He has appealed the negative decision by Revenue Canada to the Tax Court of Canada.

2.8 Federal Elections

Sauvé v. Canada (Chief Electoral Officer)

Inmates and former inmates of correctional institutions, along with a group representing Aboriginal prisoners, and a group representing prisoners more generally, are challenging a Canada Elections Act provision preventing all prisoners serving a sentence of more than two years from voting in federal elections. The individuals and groups involved claim this provision violates their right to vote, which is protected by section 3 of the Charter. They also claim that, given the overrepresentation of poor people and Aboriginal people in correctional institutions, the restriction further violates the inmates' right to equality under section 15.

In 1995, the Federal Court trial judge found the provision to be an impermissible restriction of these prisoners' right to vote. The judge found, however, that denying inmates the right to vote does not discriminate on the basis of poverty or Aboriginal ancestry contrary to section 15 of the Charter. His reason was that the law does not draw any lines among prisoners on these grounds.

In the Federal Court of Appeal's decision on October 21, 1999, two of the three appeal court judges rejected the trial judge's finding concerning voting rights, agreeing instead that the federal government had shown that the law restricts the right to vote in a minimal-and, therefore, permissible-way. All three justices also found that the election law did not violate section 15. In their view, being treated differently because one is a prisoner is not like being treated differently on the basis of those personal characteristics such as race or sex which are listed in section 15. For this reason, prisoners who are treated differently as a group do not have an equality rights claim. The appeal court focused on the fact that one's status as a prisoner changes over time, and found that the government could reasonably expect prisoners to change their behaviour in order to receive equal benefit of the law. The court further found that the election law did not discriminate on the ground of Aboriginal ancestry as most Aboriginal people are not in prison and, therefore, are still allowed to vote. Furthermore, the law was never intended to target Aboriginal prisoners.

Some of the appellants and the intervener Aboriginal Legal Services of Toronto received funding to appeal this case before the Supreme Court of Canada, which heard it on December 10, 2001 and has yet to release a decision.

3.0 Projects, Negotiations and Impact Studies Reported

The Equality Rights Program also provides financial assistance for promotion and access projects, negotiations and impact studies which assist equality seeking communities in developing their capacity to seek redress for equality rights violations which come within the Program's test case mandate. Following is a summary of some of the initiatives which were completed and reported to the Program in the last year.

3.1 Program Promotion and Access Projects

West Coast Women's Legal Education and Action Funding - Outreach Materials - This women's advocacy organization based in British Columbia prepared the following guidebook, Transforming Women's Future: A Guide to Equality Rights Theory and Action, for women and women's organizations who want to engage in equality rights advocacy. An electronic version of the guidebook in English, French or English large print is available at http://www.westcoastleaf.org/millennium.html.

Ligue des Noirs du Québec - Regional Strategic Consultation - Racial profiling was the subject of this regional conference held by the Black Coalition of Quebec.

3.2 Impact Studies

Autism Society of New Brunswick - Auton v. B.C. - An organization in New Brunswick which represents parents of and other advocates for children with autism commissioned an impact study of the Auton decision, in which a British Columbia court found that the province's failure to provide early childhood services which had been proven to ameliorate the long-term effects of autism violated section 15 (equality) of the Charter. The study examined the implications of this decision as regards the federal government's obligations to respect the equality rights of children with autism when implementing the Canada Health Act.

Court Challenges Program of Canada received funding to commission the following three impact studies of relevant cases to assist those who use the Program:

"Remedial Consensus and Challenge in Equality Rights and Minority Language Cases" by Kent Roach (October 2001).

"Court Challenges: Law" by Sheilah Martin (May 2002) -- an impact study of the Supreme Court of Canada's decision in Law v. Canada, with particular emphasis on the notions of dignity and social justice.

"Section 15 Challenges to Bill C-31: Litigation Strategies and Remedies" by Kimberly Murray and Kent Roach (July 2002).

All three studies are available in French and English on the Program's Website: www.ccppcj.ca.

3.3 Negotiations

Centre for Equality Rights in Accommodation (CERA)- "gatekeeper" provision in the Canadian Human Rights Act - An Ontario anti-poverty group conducted negotiations with the federal government in an attempt to take away the Canadian Human Rights Commission's ability to refuse to appoint a tribunal to hear a human rights complaint. They argue that the tribunal, rather than the Human Rights Commission, should be given the power to dismiss frivolous complaints or those beyond the jurisdiction of the Act. Of particular note is the fact that the Review Panel that was appointed to review the Canadian Human Rights Act in the late 1990's, adopted many of CERA's recommendations in its report. However, the Minister of Justice has yet to act on many of the recommendations of the Review Panel, including this one.

List of Authorities

Auton (Guardian ad litem of) v. British Columbia [2001] B.C.J. No. 215 (BCSC)

Bear v. Canada (Attorney General) [2001] F.C.J. No. 1619 (FCTD)

Boston v. Boston [2001] 2 S.C.R. 413 (SCC)

Canadian Foundation for Children, Youth and the Law v. Canada (A.G.) [2002] 57 O.R. (3d) 511 (OCA)

Deol v. Canada (M.C.I.) [2002] F.C.J. No. 949 (FCA)

EGALE Canada Inc. v. Canada (A.G.) [2001] B.C.J. No. 1006 (BCSC)

R. v. Golden [2001] S.C.J. No.81 (SCC)

Lavoie v. Canada [2002] S.C.J. No. 24 (SCC)

Liebmann v. Canada (M.N.D.) [2001] F.C.J. No. 1187 (FCA)

Mack v. Canada (A.G.) [2001] O.J. No. 2794 (OSCJ)

R. v. Mankwe [2001] S.C.J. No. 62 (SCC)

Perera v. Canada (C.A.) FCTD Court File No. A-146-97

[See also: Jack Aubry, "Public servant wins racial bias suit: CIDA agrees to hire 20% minorities, promote plaintiff and apologize" The Ottawa Citizen p. A1, November, 22 2001]

Périgny v. Canada (Unemployment Insurance Commission) [2001] CUBD No. 51415

Sauvé v. Canada (C.E.O.) [1999] F.C.J. No. 1577 (FCA)

Scott Irwin Simser v. Canada (A.G.) Tax Court of Canada Court File No. 1999.3963 (IT) G

PART III ‹ LANGUAGE RIGHTS PROGRAM HIGHLIGHTS

Introduction

This section of the annual report deals with the main cases granted funding by the Language Rights Panel during the 2001-2002 fiscal year, as well as the major court decisions that had an impact on language rights.

This section is divided into the following categories:

1. Minority language education rights

2. Language of work, communication and service delivery

3. Language rights and freedom of expression

4. Judicial rights

5. Legislative bilingualism

6. Unwritten (underlying) constitutional principle of protection of minorities

7. Projects, negotiations and impact studies

1. Minority language education rights

Section 23 of the Canadian Charter of Rights and Freedoms confers a scale of progressive rights to parents belonging to an official language minority group. At the low end of the scale, parents are granted the general right to have their children educated in the official language of the minority group to which they belong, provided that the number of children warrants it. Where the number of children is sufficient, section 23 also bestows the right to have these children educated in minority language education facilities. The Supreme Court of Canada has also recognized a higher level of rights in Mahé v. Alberta - the right of parents belonging to an official language minority group to govern minority language education facilities. This right to school governance can range from a guarantee of minority parent representation on a mixed school board, to absolute control of all cultural and linguistic aspects of their children's education, to setting up an independent school board for the linguistic minority.

Over the past 20 years it has become clear that section 23 of the Canadian Charter of Rights and Freedoms has played a significant role in the development of official language minorities. In Arsenault-Cameron, the Supreme Court of Canada underlined the importance of this section by accepting expert testimony that "a school is the single most important institution for the survival of the official language minority". Considering the importance of education rights in the protection of linguistic minorities in Canada, it makes sense that education rights is the category under which the Program funds the most language cases.

This year, as in the past, the Program granted funding in cases involving several important issues for official language minorities. The following pages highlight a few of these cases.

1.1 Right to governance

One of the main aspects of education rights is the exclusive right to governance of official language minorities over the issues related to language and culture. In Arsenault-Cameron, the Supreme Court of Canada had stated that:

"Where a minority language board has been established in furtherance of s. 23, it is up to the board, as it represents the minority official language community, to decide what is more appropriate from a cultural and linguistic perspective. The principal role of the Minister is to develop institutional structures and specific regulations and policies to deal with the unique blend of linguistic dynamics that has developed in the province."

According to the Supreme Court,

"The province has a legitimate interest in the content and qualitative standards of educational programs for the official language communities and it can impose appropriate programs insofar as they do not interfere with the legitimate linguistic and cultural concerns of the minority. School size, facilities, transportation and assembly of students can be regulated, but all have an effect on language and culture and must be regulated with regard to the specific circumstances of the minority and the purposes of s. 23."

In July 2001, the New Brunswick government brought significant changes to its Education Act. One of these changes involved the transfer of certain governance powers, from the Minister (under the old Act) to the new District Education Councils. Although the new Act allows for a majority of the governance powers identified in case law relative to section 23 interpretation, a few of the provisions seem to impinge on some of the rights the Charter provides for.

The Comités des parents du Nouveau-Brunswick received funding to challenge the following aspects of the Act, which seem problematic with regards to the notion of exclusive governance of issues related language and culture:

- The Education District Council must obtain the Minister's consent before establishing or closing schools.

- The new Act confers no exclusive governance powers to the rights holders with regards to educational programs.

- And finally, the Act makes no mention of the obligation, under section 23, to have the rights holders elect their own representatives. All citizens who are old enough to vote can participate in District Education Council elections, and any citizen can be elected to these councils.

The Program has also funded the Forum pour une école secondaire communautaire francophone à Moncton, for a challenge seeking that the province be required to establish a French-language high school in Moncton, the city which has the highest concentration of francophones in the Atlantic region. To this date, the New Brunswick government has refused to establish a high school in that city.

The retention rate of Moncton's francophone students, who attend high school in a neighbouring city, is only 83.2 %. According to the claimants, the establishment of a French-language high school in Moncton would increase attendance and, consequently reduce the rate of assimilation amongst youth. The claimants also focus on the collective notion of education rights for the linguistic minority to have access to a school that is located where the children live. In Arsenault-Cameron, the Supreme Court of Canada had stated that:

"It is clearly necessary to take into account the importance of language and culture in the context of instruction as well as the importance of official language minority schools to the development of the official language community when examining the actions of the government."

On a related issue, the Program has granted funding to parents from the Grande-Digue, Cap-Pelé, Barachois and Shédiac regions, in New Brunswick, Pierre Leblanc, Odette Leblanc, Pierre Dion and Nathalie Cormier. As a consequence of restructuring the Education Act, the province has reduced the number of French-language school districts, from six to five, and has created new geographical boundaries of these districts. According to the parents, these changes were made without consulting with or inviting the participation of the rights holders or their representatives.

This case will attempt to determine whether the Department of Education is allowed to single-handedly establish the geographical boundaries of school districts within which New Brunswick's official language minority communities are grouped together, or whether the minorities' representatives can exercise this right exclusively.

Elsewhere in Canada, the Division scolaire francophone # 310 (Saskatchewan) claims the right to authorize access to linguistic minority schools by non-rights holders. Saskatchewan's Education Act requires that official minority language school boards obtain the majority school boards' permission to register non-rights holders' children in its schools. The Program has granted funding to this school board so it can challenge the relevant provision, to have an important aspect relative to the right to governance recognized, namely the power to determine who can register in a linguistic minority school. According to the Division scolaire francophone, this power should be theirs, because registration is related to issues of language and culture. In effect, registration of francophone children of non-rights holders' parents would increase the number of students within the official language minority school system, which could in turn have numerous favourable impacts, including the provision of a wider range of courses and services.

1.2 The trial court's right to retain jurisdiction

Last year's annual report highlighted the funding granted to the Fédération des parents acadiens de la Nouvelle-Écosse in Doucet-Boudreau v. Nova Scotia (Department of Education), for an appeal of Justice LeBlanc's decision to retain jurisdiction in this case, to ensure compliance with his orders. This particular part of the decision was the object of an appeal launched by the Attorney General of Nova-Scotia. On June 26 2001, the Court of Appeal overturned Justice LeBlanc's decision on the issue of jurisdiction and agreed with the province.

The Language Rights Panel granted funding to the Fédération des parents acadiens de la Nouvelle-Écosse for an appeal of this decision to the Supreme Court of Canada. Recognizing that this issue is of national importance, not only for education rights but for language rights in general, the Panel also granted funding to the Fédération nationale des conseillers et des conseillères scolaires francophones, and to the Fédération des Associations des juristes d'expression française de common law Inc., to act as interveners in support of the Fédération des parents acadiens de la Nouvelle-Écosse.

2. Language of work, communication and service delivery

Paragraph 16(l) of the Charter stipulates that French and English are the official languages of Canada and have equality of status and equal rights and privileges as to their use in all institutions of the Parliament and government of Canada. Paragraph 16(2) has similar provisions regarding the institutions, legislature and government of New Brunswick, while paragraph 16(3) confirms the authority of Parliament and the legislatures to advance the equality of status or use of English and French.

Section 16.1 of the Charter is unique in that it enshrines in the Constitution, the equality of New Brunswick's two official language communities.

Section 20 of the Charter confers to individuals the right to use their language of choice to communicate with, or to receive services from, any head or central office of an institution of Parliament or of the Government of Canada and the legislature or government of New Brunswick. Except for head or central offices, the aforementioned right to receive services in the official language of one's choice is subject to significant demand or the nature of the office.

2.1 The RCMP's linguistic obligations

The Program awarded funding to Ms Paulin-Kaïré, to clarify the constitutional linguistic obligations of the Royal Canadian Mounted Police (RCMP), relative to the provision of services in the province of New Brunswick. In this case, a RCMP officer from the Woodstock Detachment charged Ms Paulin-Kaïré for speeding. Although the ticket was written in French, the officer was unable to provide French-language services and did not ask for the help of a bilingual colleague.

The RCMP maintains that it does not have a linguistic obligation at Woodstock Detachment, under the terms of subsection 5(1) h) (i) of Official Languages Regulations-Communications with and Services to the Public. This regulation provides that there is "significant demand" for the provision of bilingual services when: an office is located in a service area where the francophone population is above 500, or represents a minimum of 5% of the total population within the said area.

To counter this position, Ms Paulin-Kaïré made a very interesting legal argument, regarding the special legal status of New Brunswick. In her view, the RCMP has constitutional linguistic obligations towards the whole province, notwithstanding the "significant demand" criteria. This obligation stems from the broad and liberal interpretation that must be applied to the obligations stipulated in section 16.1 and paragraph 16(3) of the Charter, and the unwritten constitutional principles of the Canadian Constitution. An act or regulation that limits services provided by federal institutions to one of the two groups in question, on the basis of the "significant demand" criteria seems to be incompatible with the principle of equality given to New Brunswick's two linguistic communities. Moreover, in accepting a regulation that sets a lower standard than the constitutional obligations recognized in the Charter, the federal government violates paragraph 16(3), which officially sets out the notion of the advancement toward equality between the two languages.

2.2 Territorial governments' linguistic obligations

In the past, the Program had granted funding to the Fédération franco-ténoise for a court challenge aiming to clarify whether the government of the Northwest Territories and, by extension all territorial governments, were considered to be institutions of the Government of Canada, with regards to the implementation of section 20 of the Charter and of language rights, in the area of the services in question.

During the last fiscal year, the Program has granted funding to the Association franco-yukonnaise, to act as interveners in the case Fédération franco-ténoise v. Canada, regarding French-language services in the Northwest Territories. This case will help clarify an important issue in the area of language rights for official language minorities within the three territories. It focuses on the constitutional obligations of the territorial and federal governments as they pertain to sections 16 and 20 of the Charter: are the territories included in the terms "institutions of Parliament and of the Government of Canada"?

2.3 Section 16.1 of the Charter and the equality rights of both linguistic communities in New Brunswick

Last year, the Program granted funding to the Société des acadiens et acadiennes du Nouveau-Brunswick and to the Association des juristes d'expression française du Nouveau-Brunswick, so they could intervene in Moncton (city) v. Charlebois. Mr. Mario Charlebois challenged the constitutional validity of an order issued by a City of Moncton building inspector, because it was written in English only. Mr. Charlebois also challenged the validity of the bylaw under which the order had been issued, since it was not adopted in both of New Brunswick's official languages.

The trial court rejected Mr. Charlebois' motion and stated that the City of Moncton had no constitutional obligation to adopt its bylaws in both official languages. Mr. Charlebois appealed this decision before the New Brunswick Court of Appeal. He based his arguments on sections 16, 16.1 and 18 of the Charter.

In December 2001, the Court of Appeal overturned the trial court decision and agreed with Mr. Charlebois, stating that the terms "statutesŠ of the legislature" used in subsection 18(2) include municipal bylaws and requires the adoption of bylaws and regulations in both official languages.

In light of the interpretation set out by the Supreme Court of Canada in Beaulac, Justice Daigle questioned past restrictive interpretations of the terms "actsŠ of the legislature", found in section 133 of the Constitution Act, 1867. As the historical and legislative context surrounding the adoption of the Act, in 1867, was very different from that existing in 1982, when paragraph 18(2) was adopted, he added that

"To determine the meaning of subsection 18(2), it is equally important to place this provision within its historical and legislative context, i.e., the 1982 entrenchment of language guarantees in the Charter".

He also stated that,

"In light of the recent Supreme Court decisions already discussed concerning the larger objects of the Charter and the purposes of the provisions of subsection 16(2) and section 16.1, which have no equivalent in the Constitution Act, 1867, I believe that the historical and legislative context of the enactment of subsection 18(2) reflects a linguistic dynamic much more fertile in nature than the context which might have inspired the framers of section 133 at the time of Confederation. The principle of substantive equality of official languages and of the two official language communities entrenched in sections 16 and 16.1 and the corollary that language rights based thereon require government action for their implementation and therefore create obligations for the government has nothing to do with the minimum language guarantees provided for in section 133."

This case has significant importance, as it resulted in the first interpretation of section 16.1 by the courts. According to Justice Daigle, "the principle of the equality of the English linguistic community and the French linguistic community in New Brunswick entrenched in section 16.1 of the Charter is a telling indication of the purpose of language guarantees and a source of guidance in the interpretation of other Charter provisions, including subsection 18(2)". Thus, the Court recognizes the "collective" notion of section 16.1, as well as its remedial nature and the fact that it could have practical consequences. Justice Daigle stated that: "[t]he principle of the equality of the two language communities is a dynamic concept. It implies provincial government intervention which requires at a minimum that the two communities receive equal treatment but that in some situations where it would be necessary to achieve equality, that the minority language community be treated differently in order to fulfill both the collective and individual dimensions of a substantive equality of status."

Finally, Justice Daigle concludes by stating that paragraph 16.1(2) contains "a collective dimension and imposes on the government the obligation to act positively to ensure the respect and substantive application of these language guarantees."

2.4 Société des Acadiennes et Acadiens du Nouveau-Brunswick - Regional Health Authorities Act

The Panel granted funding to the Société des Acadiens et des Acadiennes du Nouveau-Brunswick to challenge the constitutionality of the new Regional Health Authorities Act, which proposes significant changes to the administration of health services in New Brunswick.

The provisions of the Act do not state clearly whether the new Health Authorities are subject to the obligations stipulated in subsection 20(2) of the Charter. Furthermore, the Société des Acadiens et des Acadiennes du Nouveau-Brunswick believes the provincial government has not complied with its constitutional obligations, in that it did not clearly state the linguistic obligations of the new Health Authorities. Recognition of equality between the two linguistic communities is not mentioned, nor is the importance of ensuring minimal measures to achieve equal treatment for both communities. The composition of the authorities is solely based on geographical considerations and does not take into account the existence of official language minority communities. Finally, the Act does not provide for measures promoting representation of the minority.

This case will help clarify the interpretation given to the term "institution", as it appears in section 16.1 and in subsections 16(1) and 20(1) of the Charter. Therefore, it is of importance, not only within New Brunswick, but also as it is applied in the broader context of the rights of minority communities with regards to health services.

3. Language rights and freedom of expression

Some of the basic rights contained in the Canadian Charter of Rights and Freedoms have a linguistic component. The most obvious example of this type of right is the freedom of expression guaranteed under section 2. The Supreme Court of Canada has already ruled on the link between language and freedom of expression in cases raised in Québec, especially regarding language in commercial signs.

The Contribution Agreement the Program reached with the federal government allows for the Language Rights Panel to grant funding to cases dealing with freedom of expression guaranteed under paragraph 2b) of the Charter, provided that these cases are directly tied to the language rights of an official language minority.

During the 2001-2002 fiscal year, the Program received no applications for funding regarding the language components of freedom of expression.

4. Judicial rights

In judicial matters, language rights are guaranteed under section 133 of the Constitution Act, 1867, section 23 of the Manitoba Act, 1870 and section 19 of the Charter. These provisions allow French and English to be used in any trial by courts established by the Parliament of Canada and by some provinces, namely Québec, New Brunswick and Manitoba.

In the judicial sphere, language rights relate mainly to the choice of language in the proceedings and the right to address the court in the official language of one's choice.

The Program has received no application for funding relating to judicial rights during the last fiscal year.

5. Legislative bilingualism

The Program may contribute financially to cases seeking clarification of the linguistic obligations of the Parliament of Canada, the legislatures of New Brunswick and Manitoba and Québec's National Assembly. Section 17 of the Charter protects the right to use French and English in debates and other proceedings of Parliament and the New Brunswick legislature. Section 18 requires that all documents emanating from these two institutions be printed and published in both official languages.

Section 133 of the Constitution Act, 1867 and section 23 of the Manitoba Act, 1870, which both preceded the Charter, impose similar duties on Parliament, the Manitoba Legislature and Québec's National Assembly.

During the 2001-2002 fiscal year, the Program has received no application for funding regarding legislative bilingualism. However, an important aspect of Charlebois, described earlier, is the interpretation of subsection 18(2) of the Charter.

6. Unwritten (underlying) constitutional principle of protection of minorities

As last year's report was being written, the matter of Gisèle Lalonde, Michelle de Courville-Nicol and Montfort Hospital v. the Health Services Restructuring Commission of Ontario was before Ontario's Court of Appeal. In November 1999, the Divisional Court of Ontario invalidated the Commission's directions, which had ordered Montfort Hospital to considerably reduce its health services.

The plaintiffs challenged the Ontario government's decision regarding Montfort Hospital, the only hospital in Ontario where French was the language of operations and where French-language health services were available at all times. This establishment also played a unique role in the areas of education and training for French-speaking health professionals in Ontario.

One of the arguments brought forward by Montfort Hospital lawyers and interveners who supported their position was that the underlying or unwritten constitutional principle of protection of minorities set out in the Reference re. Secession of Québec did not allow governmental authorities to close down an institution of such importance to the French-speaking community.

In a decision that will surely have considerable impact on language rights in Ontario and elsewhere in Canada, the Ontario Court of Appeal confirmed the trial court decision and ruled in favour of Montfort Hospital, in December 2001.

This decision contains many important principles that will prove useful in the protection of official language minorities across Canada:

- The Court reiterated the importance of language rights, noting that "the protection of linguistic minorities is essential to our country". The Court quotes Justice La Forest's comments in R. v. Mercure, stating that "rights regarding the English and French languagesŠ are basic to the continued viability of the nation".

- Although, in this matter, there is no violation of a written constitutional guarantee, the Court states that "unwritten constitutional norms may, in certain circumstances, provide a basis for judicial review of discretionary decisions", as the decision made by the Health Services Restructuring Commission. The Court also stated that the case "involves a situation with profound implications for Ontario's francophone minority community that engages the constitutional principle of respect for and protection of minorities". The Court added that:

"Fundamental constitutional values have normative legal force. Even if the text of the Constitution falls short of creating a specific constitutionally enforceable right, the values of the Constitution must be considered in assessing the validity or legality of actions taken by government."

- The Court agreed with the statements of the Divisional Court, which concluded that the language and culture of the francophone minority in Ontario "hold a special place in the Canadian fabric as one of the founding communities of Canada and as one of the two official language groups whose rights are entrenched in the Constitution". The Court further noted that:

"If implemented, the Commission's directions would greatly impair Montfort's role as an important linguistic, cultural and educational institution, vital to the minority francophone population of Ontario. This would be contrary to the fundamental constitutional principle of respect for and protection of minorities."

7. Projects, negotiations and impact studies

The Language Rights Panel also grants funding to projects regarding Program Promotion and Access, negotiations and impact studies. These projects help language rights groups develop their capacity to resolve their claims in cases where their language rights are violated and where their claims could represent test cases, within the Program's mandate. A summary describing some of the initiatives that were either funded or completed during the past year follows.

7.1 Projects - Program Promotion and Access

Fédération nationale des conseillères et conseillers scolaires francophones - This group held a national meeting to discuss the issues of education rights, aimed at developing a national litigation strategy.

Commission nationale des parents francophones - This group commissioned a discussion paper to develop a legislative and regulatory model, at the provincial or territorial levels, that would comply with section 23 of the Charter, including a division of legislative responsibilities between Departments of Education and school boards.

Association des juristes d'expression française de la Colombie-Britannique - This organization received funding for a regional conference to discuss constitutional language rights.

Association multiculturelle francophone de l'Alberta - This organization held a national conference, for francophone multicultural associations from across the country, which discussed constitutional language rights.

7.2 Impact studies

Fédération nationale des conseillères et conseillers scolaires francophones - Reference re. Secession of Québec - This study reviewed the possible implications of the Reference on the constitutional obligations of governments with regards to funding the education system of official language minorities as set out in section 23 of the Charter.

Association des juristes d'expression française de la Saskatchewan - This study will review the decisions in R .v. Beaulac, Reference re. Secession of Québec, Arsenault-Cameron v. Prince Edward Island and Montfort cases, to examine their impact on language rights in Saskatchewan.

7.3 Negotiations

Commission scolaire de langue française - This group has undertaken negotiations with the government of Prince Edward Island to ensure that regulations pertaining to education comply with the requirements of section 23 of the Charter.

Conclusion

The cases described in this report reflect the tremendous diversity of applications for funding in the area of language rights. They also illustrate that the development of language rights is progressing well, but that there are still aspects of these rights that remain to be clarified. We note the large number of cases from New Brunswick which is largely due to the fact that this province has a unique constitutional status where more language rights need to be clarified.

We would like to conclude by saying that the Program will continue its financial support to important cases related to language rights. The case law is constantly evolving, generally favourably for groups from official language minorities across the country. The Program is proud of the role it plays in supporting the efforts of these groups to attain the respect for their constitutional rights.

List of Authorities

Arsenault-Cameron et al. v. the Government of Prince Edward Island, [2000] 1 S.C.R. 3

Doucet-Boudreau v. the Government of Nova Scotia (Department of Education), [2001] N.S.J. No. 240

Fédération franco-ténoise et al. v. Canada, [2000] Federal Court of Canada No. T-110-00

Lalonde v. Ontario (Commission de restructuration des services de santé) [2002] O.J. No. 388

Mahé v. Alberta, [1990] 1 S.C.R. 342

Moncton (City) v. Charlebois [2001] N.B.J. No. 480

Reference re Secession of Québec, [1998] 2 S.C.R. 217

R. v. Beaulac [1999] 1 S.C.R. 768

R. v. Mercure [1988] 1 S.C.R. 234

PART IV -STATISTICAL HIGHLIGHTS

Table 1

Breakdown of Equality Applications Received

October 24, 1994 - March 31, 2001

Province/Territory Yukon

% of Canadian Population 0.1

1994/1995 0

% of Applications 0

1995/1996 0

% of Applications 0

1996/1997 0

% of Applications 0

1997/1998 1

% of Applications 0.7

1998/1999 0

% of Applications 0

1999/2000 0

% of Applications 0

2000/2001 1

% of Applications 0.7

2001/2002 0

% of Applications 0

Total 2

% of Applications 0.2

Province/Territory Nunavut (Nunavut became a Territory in April 1999)

% of Canadian Population 0.1

1994/1995 0

% of Applications 0

1995/1996 0

% of Applications 0

1996/1997 0

% of Applications 0

1997/1998 0

% of Applications 0

1998/1999 0

% of Applications 0

1999/2000 0

% of Applications 0

2000/2001 0

% of Applications 0

2001/2002 0

% of Applications 0

Total 0

% of Applications 0

Province/Territory Northwest Territories

% of Canadian Population 0.1

1994/1995 0

% of Applications 0

1995/1996 2

% of Applications 2.3

1996/1997 0

% of Applications 0

1997/1998 0

% of Applications 0

1998/1999 0

% of Applications 0

1999/2000 0

% of Applications 0

2000/2001 0

% of Applications 0

2001/2002 1

% of Applications 0.7

Total 3

% of Applications 0.2

Province/Territory British Columbia

% of Canadian Population 12.9

1994/1995 16

% of Applications 28.1

1995/1996 14

% of Applications 15.9

1996/1997 17

% of Applications 15.0

1997/1998 16

% of Applications 11.5

1998/1999 17

% of Applications 13.6

1999/2000 15

% of Applications 11.5

2000/2001 9

% of Applications 6.0

2001/2002 19

% of Applications 14.2

Total 123

% of Applications 13

Province/Territory Alberta

% of Canadian Population 9.3

1994/1995 5

% of Applications 8.8

1995/1996 7

% of Applications 8

1996/1997 8

% of Applications 7.1

1997/1998 13

% of Applications 9.4

1998/1999 10

% of Applications 8.0

1999/2000 15

% of Applications 11.5

2000/2001 12

% of Applications 8.0

2001/2002 15

% of Applications 11.2

Total 85

% of Applications 8.7

Province/Territory Saskatchewan

% of Canadian Population 3.4

1994/1995 2

% of Applications 3.5

1995/1996 9

% of Applications 10.2

1996/1997 3

% of Applications 2.6

1997/1998 10

% of Applications 7.1

1998/1999 1

% of Applications 0.8

1999/2000 3

% of Applications 2.3

2000/2001 4

% of Applications 2.7

2001/2002 3

% of Applications 2.2

Total 35

% of Applications 4.0

Province/Territory Manitoba

% of Canadian Population 3.8

1994/1995 7

% of Applications 12.3

1995/1996 15

% of Applications 17

1996/1997 11

% of Applications 9.7

1997/1998 25

% of Applications 18.0

1998/1999 24

% of Applications 19.2

1999/2000 24

% of Applications 18.3

2000/2001 17

% of Applications 11.3

2001/2002 14

% of Applications 10.5

Total 137

% of Applications 15.3

Province/Territory Ontario

% of Canadian Population 37.6

1994/1995 19

% of Applications 33.3

1995/1996 29

% of Applications 33

1996/1997 45

% of Applications 39.8

1997/1998 54

% of Applications 38.8

1998/1999 49

% of Applications 39.2

1999/2000 52

% of Applications 39.7

2000/2001 63

% of Applications 42.0

2001/2002 48

% of Applications 35.8

Total 359

% of Applications 38.8

Province/Territory Quebec

% of Canadian Population 24.7

1994/1995 3

% of Applications 5.2

1995/1996 5

% of Applications 5.7

1996/1997 15

% of Applications 13.2

1997/1998 13

% of Applications 9.4

1998/1999 16

% of Applications 12.8

1999/2000 10

% of Applications 7.6

2000/2001 27

% of Applications 18.0

2001/2002 22

% of Applications 16.4

Total 111

% of Applications 11.1

Province/Territory New Brunswick

% of Canadian Population 2.5

1994/1995 3

% of Applications 5.2

1995/1996 0

% of Applications 0

1996/1997 6

% of Applications 5.3

1997/1998 1

% of Applications 0.7

1998/1999 0

% of Applications 0

1999/2000 0

% of Applications 0

2000/2001 3

% of Applications 2.0

2001/2002 4

% of Applications 3.0

Total 17

% of Applications 1.6

Province/Territory Nova Scotia

% of Canadian Population 3.1

1994/1995 1

% of Applications 1.8

1995/1996 3

% of Applications 3.4

1996/1997 4

% of Applications 3.5

1997/1998 4

% of Applications 2.9

1998/1999 7

% of Applications 5.6

1999/2000 11

% of Applications 8.3

2000/2001 7

% of Applications 4.7

2001/2002 8

% of Applications 6.0

Total 45

% of Applications 4.6

Province/Territory Prince Edward Island

% of Canadian Population 0.5

1994/1995 0

% of Applications 0

1995/1996 4

% of Applications 4.5

1996/1997 1

% of Applications 1

1997/1998 0

% of Applications 0

1998/1999 0

% of Applications 0

1999/2000 0

% of Applications 0

2000/2001 2

% of Applications 1.2

2001/2002 0

% of Applications 0

Total 7

% of Applications 0.9

Province/Territory Newfoundland/Labrador

% of Canadian Population 1.9

1994/1995 0

% of Applications 0

1995/1996 0

% of Applications 0

1996/1997 2

% of Applications 1.8

1997/1998 2

% of Applications 1.5

1998/1999 1

% of Applications 0.8

1999/2000 1

% of Applications 0.8

2000/2001 4

% of Applications 2.7

2001/2002 0

% of Applications 0

Total 10

% of Applications 1.2

Province/Territory Any location outside of Canada

% of Canadian Population

1994/1995 1

% of Applications 1.8

1995/1996 0

% of Applications 0

1996/1997 1

% of Applications 1

1997/1998 0

% of Applications 0

1998/1999 0

% of Applications 0

1999/2000 0

% of Applications 0

2000/2001 1

% of Applications 0.7

2001/2002 0

% of Applications 0

Total 3

% of Applications 0.4

Totals

% of Canadian Population 100

1994/1995 57

% of Applications 100

1995/1996 88

% of Applications 100

1996/1997 113

% of Applications 100

1997/1998 139

% of Applications 100

1998/1999 125

% of Applications 100

1999/2000 131

% of Applications 100

2000/2001 150

% of Applications 100

2001/2002 134

% of Applications 100

Total 937

% of Applications 100

Table 2

Breakdown of Equality Applications Received

October 24, 1994 to March 31, 2002

(Transcriber's note: the 8 column headings are as follows: 1994/1995 1995/96 1996/97 1997/98 1998/99 1999/00 2000/01 2001/2002TOTAL)

Aboriginal 9 19 21 33 15 39 29 26 191

Age 2 0 5 5 3 5 7 3 30

Citizenship 2 2 1 4 4 2 5 0 30

Colour/Race/National Origin/Ethnicity

-- Colour 0 7 6 4 0 0 0 0 17

-- Race 0 0 2 9 17 16 24 23 91

-- National Origin 2 1 3 2 1 0 0 2 11

-- Ethnicity 2 1 6 4 9 2 7 2 33

-- General (Note a) 2 5 9 3 3 0 0 0 22

Disability 7 12 10 19 17 13 17 16 111

Family/Marital/Parental 3 6 6 4 6 5 7 3 40

Geography 0 0 2 1 0 2 2 1 8

Language 0 2 1 1 0 0 0 2 6

Poverty 4 6 5 6 10 6 12 10 59

Prisoner/Criminal Record 5 2 3 3 6 9 6 3 37

Refugee 0 0 0 0 0 0 1 2 3

Religion 2 1 0 0 0 0 1 0 4

Section 15 General 3 2 8 9 2 2 1 0 27

Sex 3 6 9 16 18 14 13 17 96

Sexual Orientation 6 10 10 9 6 7 8 10 66

Transgendered 0 1 1 1 3 0 1 1 8

Unknown (Note b) 0 1 2 0 0 0 0 0 3

Other (Note c) 5 4 3 6 5 9 9 13 54

TOTAL 57 88 113 139 125 131 150 134 937

Note a: Applications involving all of the following grounds of discrimination: colour, race, national origin and ethnic origin.

Note b: Applications involving no known ground for discrimination.

Note c: Applications involving a ground of discrimination other than those listed in this table.

Table 3

Breakdown of Decisions Made by the Equality Rights

Panel from October 24, 1994 - March 31, 2002

(Transcriber's note: the 5 column headings are as follows: Decision Pending, Panel/Admin Rejection, Applicant Withdrawn, Panel Granted, Total)

Aboriginal 16 31 8 136 191

Age 1 7 2 20 30

Citizenship 0 6 3 11 20

Colour/Race/National Origin/Ethnicity

-- Colour 0 5 2 10 17

-- Race 10 15 2 64 91

-- National Origin 0 4 2 5 11

-- Ethnicity 1 11 2 19 33

-- General (Note a) 0 1 2 19 22

Disability 9 27 5 70 111

Family/Marital/Parental 2 19 3 16 40

Geography 1 6 0 1 8

Language 0 3 0 3 6

Poverty 3 14 4 38 59

Prisoner/Criminal Record 1 9 2 25 37

Refugee 1 0 0 2 3

Religion 0 4 0 0 4

Section 15 General 1 1 1 24 27

Sex 6 21 4 65 96

Sexual Orientation 1 10 4 51 66

Transgendered 0 2 1 5 8

Unknown (Note b) 0 2 1 0 3

Other (Note c) 11 26 4 13 54

TOTAL 64 244 (Note d) 52 597 (Note e) 937

Acceptance Rate = 72.7%

Note a: Applications involving all of the following grounds of discrimination: colour, race, national origin and ethnic origin.

Note b: Applications involving no known ground for discrimination.

Note c: Applications involving a ground of discrimination other than those listed in this table.

Note d: See table 5 for a further breakdown

Note e: See table 4 for a further breakdown

Table 4

Breakdown of Type of Funding Granted by the Equality

Rights Panel from October 24, 1994 to March 31, 2001

(Transcriber's note: the 5 column headings are as follows: Case Development, Case Funding, Impact Study, Program Promotion and Access and Negotiation, Total)

Aboriginal 44 73 7 11 135

Age 5 13 0 2 20

Citizenship 2 7 0 2 11

Colour/Race/National Origin/Ethnicity

-- Colour 2 6 0 2 10

-- Race 13 16 2 33 64

-- National Origin 2 3 0 0 5

-- Ethnicity 5 7 0 7 19

-- General (Note a) 5 5 0 9 19

Disability 22 33 5 10 70

Family/Marital/Parental 4 12 0 0 16

Geography 0 0 0 1 1

Language 1 2 0 0 3

Poverty 9 15 1 13 38

Prisoner/Criminal Record 8 14 1 2 25

Refugee 0 2 0 0 2

Religion 0 0 0 17 24

Section 15 General 1 6 0 17 24

Sex 10 32 3 21 66

Sexual Orientation 7 23 3 18 51

Transgendered 1 0 0 4 5

Unknown (Note b) 0 0 0 0 0

Other (Note c) 0 2 3 8 13

TOTAL 141 271 (Note d) 25 160 597

Note a: Applications involving all of the following grounds of discrimination: colour, race, national origin and ethnic origin.

Note b: Applications involving no known ground for discrimination.

Note c: Applications involving a ground of discrimination other than those listed in this table.

Note d: See table 6 for a further breakdown

Table 5

Breakdown of Unsuccessful Equality Rights Applications from October 24, 1994 to March 31, 2002

(Transcriber's note: the 5 column headings are as follows: No Federal Link (Note a), Not a Test Case (Note b), Duplication (Note c), Canadian Human Rights Act (Note d), Total)

Aboriginal 8 14 8 1 31

Age 3 3 1 0 7

Citizenship 2 3 1 0 6

Colour/Race/National Origin/Ethnicity

-- Colour 4 1 0 0 5

-- Race 7 6 2 0 15

-- National Origin 2 1 0 1 4

-- Ethnicity 2 7 1 1 11

-- General (Note e) 1 0 0 0 1

Disability 13 10 4 0 27

Family/Marital/Parental 6 12 0 1 19

Geography 1 5 0 0 6

Language 3 0 0 0 3

Poverty 11 2 1 0 14

Prisoner/Criminal Record 3 6 0 0 9

Refugee 0 0 0 0 0

Religion 3 1 0 0 4

Section 15 General 0 1 0 0 1

Sex 7 11 3 0 21

Sexual Orientation 0 3 7 0 10

Transgendered 0 1 0 1 2

Unknown (Note f) 2 0 0 0 2

Other (Note g) 16 10 0 0 26

TOTAL 94 97 28 5 224

Note a: The Program's Contribution Agreement states that cases which receive funding must challenge a Federal law, policy or practice and cannot challenge a provincial or territorial law, policy or practice. These applications did not receive funding because they did not meet this requirement. Either they challenged provincial government action or they did not challenge government action at all.

Note b: A "test case" is a legal case which deals with a problem or raises an argument that has not already been decided by the courts and has the potential to stop discrimination or improve the way the law works for members of a disadvantaged group or groups in Canada. These are applications where the Equality Rights Panel found that the proposed challenge was not a strong test case based on section 15 of the Canadian Charter of Rights and Freedoms. Common reasons leading to such a decision by the Panel are: the case, if successful, will benefit only the individual involved as opposed to a broader group of equality seekers; the case does not provide the opportunity to advance equality for an historically disadvantaged group; and/or the equality issue in the case has already been determined by the courts.

Note c: These applications covered legal issues already funded by the Program or already before the courts. The Program's Contribution Agreement does not allow it to fund such "duplicate" cases.

Note d: These applications involved complaints under the Canadian Human Rights Act. The Program's Contribution Agreement prevents it from funding such cases.

Note e: Applications involving all of the following grounds of discrimination: colour, race, national origin and ethnic origin.

Note f: Applications involving no known ground of discrimination.

Note g: Applications involving a ground of discrimination other than those listed in this table.

Table 6

Breakdown of Case Funding Granted by the Equality Rights Panel October 24, 1994 - March 31, 2002

Case Funding: Aboriginal

First Instance 56 (5 interventions)

Appeal 7 (2 intervention)

Supreme Court of Canada 10 (8 interventions)

Total 73

Case Funding: Age

First Instance 7

Appeal 3

Supreme Court of Canada 3 (1 intervention)

Total 13

Case Funding: Citizenship

First Instance 2

Appeal 2

Supreme Court of Canada 3 (1 intervention)

Total 13

Case Funding (Color/Race/National Origin/Ethnicity): Color

First Instance 2

Appeal 1

Supreme Court of Canada 3 (2 intervention)

Total 6

Case Funding: Race

First Instance 7 (1 intervention)

Appeal 3 (1 intervention)

Supreme Court of Canada 6 (5 interventions)

Total 16

Case Funding National Origin

First Instance 3

Appeal 0

Supreme Court of Canada 0

Total 3

Case Funding Ethnicity

First Instance 5 (1 intervention)

Appeal 2 (1 intervention)

Supreme Court of Canada 0

Total 7

Case Funding General (Note a)

First Instance 2 (1 intervention)

Appeal 2 (1 intervention)

Supreme Court of Canada 1

Total 5

Case Funding Disability

First Instance 13 (4 intervention)

Appeal 12 (6 intervention)

Supreme Court of Canada 8 (5 interventions)

Total 33

Case Funding Family/Marital/Parental

First Instance 7

Appeal 4 (1 intervention)

Supreme Court of Canada 1 (1 intervention)

Total 12

Case Funding Geography

First Instance 0

Appeal 0

Supreme Court of Canada 0

Total 0

Case Funding Language

First Instance 2 (1 intervention)

Appeal 0

Supreme Court of Canada 0

Total 2

Case Funding Poverty

First Instance 9

Appeal 4 (2 intervention)

Supreme Court of Canada 2 (2 interventions)

Total 15

Case Funding Prisoner/Criminal Record

First Instance 3

Appeal 4 (3 intervention)

Supreme Court of Canada 6 (5 interventions)

Total 14

Case Funding Refugee

First Instance 1

Appeal 0

Supreme Court of Canada 1 (1 intervention)

Total 2

Case Funding Religion

First Instance 0

Appeal 0

Supreme Court of Canada 0

Total 0

Case Funding Section 15 General

First Instance 1

Appeal 0

Supreme Court of Canada 5 (4 interventions)

Total 6

Case Funding Sex

First Instance 13 (2 intervention)

Appeal 10 (6 intervention)

Supreme Court of Canada 9 (7 interventions)

Total 32

Case Funding Sexual Orientation

First Instance 10 (1 intervention)

Appeal 9 (5 interventions)

Supreme Court of Canada 4 (3 interventions)

Total 23

Case Funding Unknown (Note b)

First Instance 0

Appeal 0

Supreme Court of Canada 0

Total 0

Case Funding Other (Note c)

First Instance 1

Appeal 1 (1 intervention)

Supreme Court of Canada 0

Total 2

Case Funding Total

First Instance 145

Appeal 64

Supreme Court of Canada 62

Total 271

Note a: Applications involving all of the following grounds of discrimination: colour, race, national origin and ethnic origin.

Note b: Applications involving no known ground for discrimination.

Note c: Applications involving a ground of discrimination other than those listed in this table.

Table 7

Breakdown of Language Applications Received

October 24, 1994 to March 31, 2002

Province/Territory Yukon

% of Canadian Population 0.1

1994/1995 0

% of Applications 0.0

1995/1996 0

% of Applications 0.0

1996/1997 1

% of Applications 4.0

1997/1998 0

% of Applications 0.0

1998/1999 0

% of Applications 0.0

1999/2000 3

% of Applications 6.5

2000/2001 1

% of Applications 2.0

2001/2002 1

% of Applications 2.4

Total 6

% of Applications 2.4

Province/Territory Nunavut (Nunavut became a Territory in April 1999.)

% of Canadian Population 0.1

1994/1995 0

% of Applications 0.0

1995/1996 0

% of Applications 0.0

1996/1997 1

% of Applications 0.0

1997/1998 0

% of Applications 0.0

1998/1999 0

% of Applications 0.0

1999/2000 1

% of Applications 2.4

2000/2001 0

% of Applications 0.0

2001/2002 0

% of Applications 0.0

Total 1

% of Applications 0.4

Province/Territory Northwest Territories

% of Canadian Population 0.1

1994/1995 1

% of Applications 7.1

1995/1996 1

% of Applications 4.3

1996/1997 1

% of Applications 4.0

1997/1998 0

% of Applications 0.0

1998/1999 0

% of Applications 0.0

1999/2000 2

% of Applications 4.3

2000/2001 5

% of Applications 10.0

2001/2002 0

% of Applications 0.0

Total 10

% of Applications 3.9

Province/Territory British Columbia

% of Canadian Population 12.9

1994/1995 1

% of Applications 7.1

1995/1996 3

% of Applications 13.1

1996/1997 1

% of Applications 4.0

1997/1998 1

% of Applications 3.7

1998/1999 0

% of Applications 0.0

1999/2000 1

% of Applications 2.4

2000/2001 0

% of Applications 0.0

2001/2002 1

% of Applications 2.4

Total 8

% of Applications 3.2

Province/Territory Alberta

% of Canadian Population 9.3

1994/1995 0

% of Applications 0.0

1995/1996 3

% of Applications 13.1

1996/1997 0

% of Applications 0.0

1997/1998 0

% of Applications 0.0

1998/1999 3

% of Applications 11.5

1999/2000 5

% of Applications 10.7

2000/2001 3

% of Applications 6.0

2001/2002 0

% of Applications 0.0

Total 14

% of Applications 5.5

Province/Territory Saskatchewan

% of Canadian Population 3.4

1994/1995 0

% of Applications 0.0

1995/1996 1

% of Applications 4.3

1996/1997 0

% of Applications 0.0

1997/1998 2

% of Applications 7.4

1998/1999 1

% of Applications 3.9

1999/2000 0

% of Applications 0.0

2000/2001 0

% of Applications 0.0

2001/2002 4

% of Applications 9.5

Total 8

% of Applications 3.2

Province/Territory Manitoba

% of Canadian Population 3.8

1994/1995 2

% of Applications 14.3

1995/1996 4

% of Applications 17.5

1996/1997 6

% of Applications 24.0

1997/1998 1

% of Applications 3.7

1998/1999 7

% of Applications 23.1

1999/2000 11

% of Applications 26.1

2000/2001 10

% of Applications 20.0

2001/2002 10

% of Applications 23.8

Total 51

% of Applications 20.2

Province/Territory Ontario

% of Canadian Population 37.6

1994/1995 7

% of Applications 50.1

1995/1996 1

% of Applications 4.3

1996/1997 1

% of Applications 4.1

1997/1998 9

% of Applications 33.3

1998/1999 8

% of Applications 27.0

1999/2000 4

% of Applications 10.7

2000/2001 7

% of Applications 14.0

2001/2002 7

% of Applications 16.7

Total 44

% of Applications 17.4

Province/Territory Qubébec

% of Canadian Population 24.7

1994/1995 1

% of Applications 7.1

1995/1996 5

% of Applications 21.7

1996/1997 6

% of Applications 24.0

1997/1998 6

% of Applications 22.2

1998/1999 2

% of Applications 3.9

1999/2000 7

% of Applications 17.4

2000/2001 8

% of Applications 16.0

2001/2002 4

% of Applications 9.5

Total 39

% of Applications 15.4

Province/Territory New Brunswick

% of Canadian Population 2.5

1994/1995 2

% of Applications 14.3

1995/1996 2

% of Applications 8.7

1996/1997 3

% of Applications 12.0

1997/1998 8

% of Applications 29.7

1998/1999 1

% of Applications 3.9

1999/2000 6

% of Applications 13.0

2000/2001 11

% of Applications 22.0

2001/2002 11

% of Applications 26.2

Total 44

% of Applications 17.3

Province/Territory Nova Scotia

% of Canadian Population 3.1

1994/1995 0

% of Applications 0.0

1995/1996 0

% of Applications 0.0

1996/1997 3

% of Applications 12.0

1997/1998 0

% of Applications 0.0

1998/1999 2

% of Applications 7.6

1999/2000 3

% of Applications 6.5

2000/2001 2

% of Applications 4.0

2001/2002 3

% of Applications 7.1

Total 13

% of Applications 5.1

Province/Territory Prince Edward Island

% of Canadian Population 0.5

1994/1995 0

% of Applications 0.0

1995/1996 2

% of Applications 8.7

1996/1997 1

% of Applications 4.0

1997/1998 0

% of Applications 0.0

1998/1999 3

% of Applications 11.5

1999/2000 0

% of Applications 0.0

2000/2001 0

% of Applications 0.0

2001/2002 1

% of Applications 2.4

Total 7

% of Applications 2.8

Province/Territory Newfoundland Labrador

% of Canadian Population 1.9

1994/1995 0

% of Applications 0.0

1995/1996 1

% of Applications 4.3

1996/1997 2

% of Applications 8.0

1997/1998 0

% of Applications 0.0

1998/1999 2

% of Applications 7.6

1999/2000 0

% of Applications 0.0

2000/2001 3

% of Applications 6.0

2001/2002 0

% of Applications 0.0

Total 8

% of Applications 3.2

Totals

% of Canadian Population 100

1994/1995 14

% of Applications 100

1995/1996 23

% of Applications 100

1996/1997 25

% of Applications 100

1997/1998 27

% of Applications 100

1998/1999 29

% of Applications 100

1999/2000 43

% of Applications 100

2000/2001 50

% of Applications 100

2001/2002 42

% of Applications 100

Total 253

% of Applications 100

Table 8

Breakdwon of Language Applications Received

October 24, 1994 to March 31, 2002

(Transcriber's note: the 8 column headings are as follows: 1994/1995 1995/96 1996/97 1997/98 1998/99 1999/00 2000/01 2001/2002 TOTAL)

Education Rights 11 14 19 14 16 26 20 131

Judicial Rights 1 3 2 1 2 5 0 5 19

Language of Work,

Communication and Service 1 6 6 6 3 9 13 12 56

Legislative Bilingualism 1 2 2 0 2 1 1 0 9

Other 0 1 1 1 8 12 10 5 38

TOTAL 14 23 25 27 29 43 50 42 253

Table 9

Breakdown of Decisions Made by the Language Rights Panel

From October 24, 1994 - March 31, 2002

(Transcriber's note: the 5 column headings are as follows:

Decision Pending, Panel/Admin Rejection, Applicant Withdrawn, Panel Granted, Total)

Education Rights 23 13 2 104 131

Judicial Rights 3 4 2 10 19

Language of Work,

Communication and Service 2 10 0 4 56

Legislative Bilingualism 0 4 0 5 9

Other 1 7 0 30 38

TOTAL 18 38 (see note a. below) 4 193 (see note b. below) 253

Acceptance Rate = 76.8%

Transcriber's note a. See Table 11 for a further breakdown.

Transcriber's note a. See Table 10 for a further breakdown.

Table 10

Breakdown of Type of Funding Granted by the Language Rights Panel

From October 24, 1994 - March 31, 2002

Transcriber's note: the 5 column headings are as follows:

Case Development, Case Funding, Impact Study, Program Promotion & Access and Negotiation, Total)

Education Rights 17 60 7 20 104

Judicial Rights 3 6 1 0 10

Language of Work,

Communication and Service 15 21 2 6 44

Legislative Bilingualism 1 3 1 0 5

Other 4 8 7 11 30

TOTAL 40 98 (see note a. below) 18 37 193

Transcriber's note a. See Table 12 for a further breakdown.

Table 11

Breakdown of Unsuccessful Language Rights Applications

October 24, 1994 to March 31, 2002

Transcriber's note: the 5 column headings are as follows:

No Constitutional Link (see note a. below), Not a Test Case (see note b. below), Duplication (see note c. below), Other (see note d. below), Total)

Education Rights 5 2 2 4 13

Judicial Rights 2 1 0 1 4

Language of Work,

Communication and Service 3 4 2 1 10

Legislative Bilingualism 2 1 0 1 4

Other 3 2 0 2 7

TOTAL 15 10 4 9 38

Transcriber's note a. The Program's Contribution Agreement states that cases which receive funding must advance official language minority rights as guaranteed by the interpretation or application of section 93 or 133 of the Constitution Act, 1867, or as guaranteed in section 23 of the Manitoba Act, 1870, sections 16 to 23 of the Constitution Act, 1982 or parallel constitutional provisions.

Transcriber's note b. A "test case" is a legal case which deals with a problem or raises an argument for the resolution of a linguistic rights issue. These are applications where the Language Rights Panel found that the proposed challenge was not a strong test case. Common reasons leading to such a decision by the Panel are: the case, if successful, will benefit only the individual involved as opposed to a broader group of official language minorities; the case does not provide the opportunity to advance the linguistic rights of the official language minority; and/or the language issue in the case has already been determined by the courts.

Transcriber's note c. These applications covered legal issues already funded by the Program or already before the courts. The Program's Contribution Agreement does not allow it to fund such "duplicate" cases.

Transcriber's note d. Applications involving a reason other than those listed in this table.

Table 12

Breakdown of Case Funding Granted by the Language Rights Panel

October 24, 1994 to March 31, 2002

(Transcriber's note: the 4 column headings are as follows:

First Instance, Appeal, Supreme Court of Canada, Total)

First Instance:

Education Rights 39 (9 interventions)

Judicial Rights 3

Language of Work and Service 17 (3 intervention)

Legislative Bilingualism 1

Other 1

Total 61

Appeal level:

Education Rights 11 (8 interventions)

Judicial Rights 2 (2 intervention)

Language of Work and Service 4 (1 intervention)

Legislative Bilingualism 1 (1 intervention)

Other 5 (3 intervention)

Total 23

SCC Level:

Education Rights 10 (8 interventions)

Judicial Rights 1 (1 intervention)

Language of Work and Service 0

Legislative Bilingualism 1 (1 intervention)

Other 2 (1 intervention)

Total 14

Grand total:

Education Rights 60

Judicial Rights 6

Language of Work and Service 21

Legislative Bilingualism 3

Other 8

Total 98

PART V - RESOURCES

The Court Challenges Program has developed various information materials to promote the Program and its objectives. The following documents are available to the public for free upon request.

Annual Reports

1994/1995 Annual Report - Court Challenges Program of Canada - a report of the activities undertaken by the Program from the time of its reinstatement to March 31, 1995.

Available in English, French and on computer diskette.

1995/96 Annual Report - Court Challenges Program of Canada - a report of the activities undertaken by the Program from April 1, 1995 to March 31, 1996.

ISBN #1-896894-00-3

Available in English, French and on computer diskette.

1996/97 Annual Report - Court Challenges Program of Canada - a report of the activities undertaken by the Program from April 1, 1996 to March 31, 1997.

ISBN #1-896894-02-X

Available in English, French and on computer diskette.

1997/98 Annual Report - Court Challenges Program of Canada - a report of the activities undertaken by the Program from April 1, 1997 to March 31, 1998.

ISBN #1-896894-04-6

Available in English, French and on computer diskette.

1998/99 Annual Report - Court Challenges Program of Canada - a report of the activities undertaken by the Program from April 1, 1998 to March 31, 1998.

ISBN #1-896894-06-2

Available in English, French and on computer diskette.

1999/00 Annual Report - Court Challenges Program of Canada - a report of the activities undertaken by the Program from April 1, 1999 to March 31, 2000.

ISBN #1-896894-06-2

Available in English, French and on computer diskette.

Brochures

Court Challenges Program of Canada - a brochure on the mandate and the different types of funding available from the Program.

Available in English, French, audio-tape, large print, braille or on computer diskette.

Your Right to Equality - a brochure on equality rights and the Court Challenges Program.

Available in English, French, audio-tape, large print, braille or on computer diskette.

Information Kit - Court Challenges Program of Canada - a series of information sheets which explain how to apply for funding from the Court Challenges Program.

Available in English, French, audio-tape, large print, braille or on computer diskette.

Papers

Charter Litigating for Racial Equality, Nitya Iyer, February 1996 - The paper discusses the comparative absence of Charter s. 15 cases of racial inequality.

Available in French and English.

Court Challenges: Law Sheilah Martin (May 2002) -- an impact study of the Supreme Court of Canada's decision in Law v. Canada, with particular emphasis on the notions of dignity and social justice.

Available in French and English.

L'article 23 et les défis de l'éducation pour la minorité linguistique francophone : Frondeurs et Tyrans, Jean Pierre Dubé, Novembre 1999 - The paper reviews the state of education for French-language minorities and outlines the challenges to be overcome in the area of French-language education for minority francophone communities.

Available in French.

L'Entente sur l'union sociale et ses conséquences sur les communautés minoritaires de langue officielle, François Boileau, November 1999 - Mr. Boileau gives a brief description of the Social Union Framework Agreement and explains the effects of federal spending on official language minority communities.

Available in French.

Le bilan des droits linguistiques au Canada, Benoît Pelletier, Août 1995 - The study examines the state of language rights in Canada to August 1995.

Available in French.

Les changements économiques et les communautés minoritaires de langue française, Jean Guy Vienneau, November 1999 - This paper describes the current economic situation of Canada's French-language minority communities and proposes a variety of solutions that would enable these communities to meet future economic challenges.

Available in French.

Les élements essentiels pour avoir des communautés minoritaires vibrantes de langue officielle, Rodrigue Landry, PhD, November 1999 - Using a theoretical model and concrete examples, Dr. Landry lists and explains the political, demographic, cultural and economic factors that are needed to sustain healthy minority linguistic communities.

Available in French.

Les transformations gouvernementales et les communautés minoritaires de langues officielle, Linda Cardinal, Political Science Department, University of Ottawa, November 1999 - This paper summarizes the Savoie and Fontaine reports on the impact of government transformations on official language minority communities and sets out some implementation strategies that might be pursued.

Available in French.

Official-Language Minorities: Demographic Trends, Charles Castonguay, Professor, Department of Mathematics and Statistics, University of Ottawa, July 20, 1999 - The paper discusses the demographic trends in official language minority communities and the need to adopt a strategy to counter the effects of assimilation.

Available in French and English.

Remedial Consensus and Challenge in Equality Rights and Minority Language Cases, Kent Roach (October 2001).

Available in French and English.

Section 15 Challenges to Bill C-31: Litigation Strategies and Remedies, Kimberly Murray and Kent Roach (July 2002).

Available in French and English.

Section 15 in the New Millennium: The Recognition of Human Dignity and Substantive Equality, Norma Won, August 1999 - This paper analyzes the Law v. Canada (Minister of Employment and Immigration) decision and discusses its current and future impact for equality seeking communities.

Available in French and English.

Sections 16, 20 and 23 of the Canadian Charter of Rights and Freedoms: Unanswered Questions, Richard L. Tardif, Director, Legal Services, Office of the Commissioner of Official Languages, August 1999 - Mr. Tardif reviews unanswered questions arising out of Sections 16, 20 and 23 of the Canadian Charter of Rights and Freedoms

Available in French and English.

The Equality Guarantee of the Charter in the 1990's, Gwen Brodsky, April 19, 1996 - This paper provides an overview of equality rights litigation issues, concentrating on developments subsequent to 1992 when the original Court Challenges Program was cancelled.

Available in French and English.

Transcending Language, Transforming Context: Reclaiming Charter(ed) Territory, Norma Won, August 1998 - Ms Won discusses the strengths and limitations of the interpretation of Equality Under Section 15 of the Canadian Charter of Rights and Freedoms

Available in French and English.

Transformations technologiques et l'évolution des communautés minoritaires de langue officielle, Sylvio Boudreau, Fondation Concept Art Multimedia, November 1999 - Mr. Boudreau takes a quick look at current technological changes and discusses how francophone minorities are making use of the Internet.

Available in French.

Working Together Across Our Differences, Avvy Go and John Fisher, August 1998 - This paper discusses various experiences and lessons learned when community groups participate in coalition-building, participatory litigation and strategic litigation.

Court Challenges Program of Canada received funding to commission the following three impact studies of relevant cases to assist those who use the Program:

Available in French and English

The Court Challenges Web Site

The Program has also developed a Web Site at http://www.ccppcj.ca. Information contained on the site includes the following materials:

- the Program's organizational chart,

- the Program's general brochure,

- Your Right to Equality brochure,

- the information kit,

- biographies of Board members, Panel members and staff, and

- information about the Program's logo.

In addition to the on-going collection of Program materials, links to other web sites, and other information is available in the library. The library also contains an alphabetical listing of key words and can be searched for words or phrases. The site also contains a discussion area called "Law Talk/Parlons droit". Interested people can contribute to the dialogue or catch up on a discussion about equality and language rights in Canada.