Saturday, April 21, 2007

Dion Wants the Court Challenges Program Back

Dion calls for the reinstatement of the Court Challenges program cut by the Harper Cons. Good for him.

The Cons say “why would the government fund people who want to challenge official government policy through the Courts?” They also say the Court Challenges Program was not much more than a pool of cash for lawyers to access to irritate the government. That seems to be the extent of the rationale for Harper to cut the program. It has been cut before, by the Mulroney government and later reinstated.

The fundamental reason to have the program is to enable differing opinions to challenge government policy based on law and its interpretation, not political whims as the Cons imply. It is a very worthwhile program and one that reflects a mature democracy, not the stern disciplinary “father knows best stance” and Harper “is your daddy” of the current federal Bush-like CPC government.

In the spirit of full disclosure I have been one of the lawyers who have accessed the Court Challenges “pool of cash” in order to fight a government policy. We acted on behalf of a group of Franco-Albertans who wanted to exercise their Section 23 Charter rights for a minority French language school in Alberta. This action was contrary to the stated policy of the Government of Alberta, under then Premier, Peter Lougheed.

Lougheed’s government was one of the most enlightened of the day but the animus towards bilingualism and the sense that “French was being shoved down or throats” was still alive in Alberta in those days. The obvious political position of the Alberta government was taken and they argued that there were not enough French speaking people to pass the “where number warrant” test in the legislation.

The Alberta government fought us all the way to the Supreme Court. Our client’s, who were ordinary citizens and not independently wealthy, could not afford to continue the battle without the aid of the Court Challenges program. I believe we got the last funds from the program just before Mulroney killed it.

The “where number warrant” test in the legislation is what the case turned on. How to prove you had enough French speaking people to warrant a minority language school system was a big legal challenge to be sure. What was the minimum number of minority French language speaking people in an area that was needed to justify a school?

We had a stroke of genius one day and thought the maximum test for sufficient numbers should be the same number of students as in the smallest English speaking school jurisdiction in Alberta. Eureka! We found a mainstream school jurisdiction under Alberta law in Waterton Lakes National Park that had only 23 students but they had an elected School Board, a Superintendent and a full blown delivery system for only 23 student.

BTW, the Supreme Court agreed with us and we won the case. The francophone school system in Alberta is now well established, highly respected and thriving all over the province.

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