Anglo rights cash squeeze

End of Court challenges program puts Bill 104 appeal in doubt

Loi 104 - Les écoles passerelles - réplique à la Cour suprême

Already facing unsympathetic majority opinion and effectively disenfranchised in the political arena, Quebec's English-speaking minority might have lost its last remaining means to defend its rights and interests: recourse to the courts.
A year ago, the Harper government cut off funding for new cases under the federal Court Challenges Program, which provides financial assistance for cases to advance language and equality rights guaranteed by the constitution.
Social conservatives and opponents of so-called judicial activism had called the program, which had funded cases in favour of gay marriage, voting by prisoners, and a Criminal Code ban on spanking children, a slush fund for the left.

But the original purpose of the program when it was created in 1978 was to advance minority language rights. And minority organizations expressed fears that shutting off public financial aid for new cases would deprive minorities of the ability to defend their rights.
The effects of the government's action are already being felt, lawyer Brent Tyler said yesterday.
In fact, he said, it might prevent him from going to the Supreme Court of Canada to defend a judgment he obtained two weeks ago declaring a provision of the French Language Charter unconstitutional.
Three judges of the Quebec Court of Appeal ruled 2-1 against Bill 104, a 2002 amendment to the language law to prevent a child from obtaining admission to a publicly funded English school by first attending an unsubsidized English private school for a year. Tyler's clients are 25 families affected by Bill 104.
Immediately after the judgment was handed down, the Charest government announced it would seek leave from the Supreme Court to appeal it.
Tyler estimated it would cost "from $150,000 to $200,000" to defend the judgment before the highest court in the land, and that the court-challenges program would have provided $70,000.
He said his clients cannot afford to make up the shortfall.
And "there are limits" as to how much he can reduce his fee of $300 an hour and still cover expenses, since he had lost commercial clients because, as one colleague told him, his controversial language cases had made him "radioactive."
If the Supreme Court grants the Charest government leave to appeal the judgment, Tyler might ask the court to exercise its discretionary power to have the government - that is, his adversary - pay his fees in advance.
He cited one precedent: a 2003 Supreme Court ruling upholding a British Columbia appeal court order to the provincial government to pay the legal costs of the Okanagan Indian band in a case involving aboriginal logging rights.
But he conceded that for a court to issue such an order is "extraordinary." And if the Supreme Court declines to issue one, he and his clients would face a "judgment call" as to whether to continue.
If they decided not to, then "interveners" such as francophone groups from other provinces might want to take up the case. But they would not be considered "rights holders" with a direct stake in the case. Or the court could appoint an "amicus curiae," or a lawyer to plead in place of an absent party, as it did when the former Parti Québécois government refused to participate in the 1998 reference on Quebec secession.
Of course, Tyler and his clients also could try to raise funds through donations. And while he has been unsuccessful in obtaining assistance from Quebec's English-language school boards, he said he has received calls from sympathizers across the country, as well as an expression of interest by at least one teachers' union he would not identify.
But, he said, "we're not going to do it with contributions of $100 and $150," and he can't take time out from his legal practice to organize a fundraising campaign. And since a court challenge is not a charity, tax deductions could not be offered as an incentive for contributions.
That left Tyler hoping some wealthy "sugar mama" might be willing to invest a six-figure sum in a cause in which victory is far from assured.

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