I'll make the first part of my remarks in French and the second part in English.
First, I propose to explain why most countries have law reform bodies and what those bodies do. Then I'll talk about the unique character of a law reform institution and, lastly, about the costs and losses associated with the loss of the Law Reform Commission of Canada for very specific people such as youth, seniors, Aboriginal persons and the Canadian population as a whole.
A law reform body exists to advise the government on how to minimize
the gap between law as lived and law as written.
The role of law reform commissions is to work at three levels: with the citizenry, with the research and expert community and with the decision-makers and people who make public policy.
As regards the citizenry—and this aspect of the work of law reform commissions is very important—the promises of the law often do not materialize in the way in which citizens experience the law or in the way in which citizens are subject to the law. The work of a law reform commission is thus essentially to measure the gap between what the law states and what it does. It performs this task by consulting the public, by ensuring that the public is engaged in defining the problems of the law and through empirical studies. Anecdote is not a sufficient basis for this; you also have to know how to measure the gap. We're trying to measure the problems of the law in society.
This first evaluation is done in the perspective of identifying the questions that concern Canadians and that must lead us to reflect. We must then ask the research and expert community to examine those questions. In a way, the commission acts as a link between citizens' concerns and the research community. It asks researchers to focus on questions that are at the origin of citizens' concerns. It is by reason of its somewhat prestigious status, as a result of the fact that it's related to Parliament, that it can call on prestigious researchers and approach them.
Law reform bodies have access, to a certain degree, to the best brains and especially to the best research networks. Researchers have not only internal networks, here in Canada, but also external, international networks. A law reform body is able to mobilize these research networks so that they can examine a question that arises from its consultations with citizens. It can therefore offer the Canadian public the benefit of major research networks in order to advance the law in Canada.
It also works with decision-makers. Law reform bodies circulate their research work very freely to citizens, community groups and across Canada. We know that the papers of the Law Reform Commission of Canada, for example, have often been used in many institutions in Canada.
It isn't just all the problems of gaps between the written law and the law as experienced that can be resolved by legislation. Many problems can be solved through changes in institutional methods and through the development of better practices. The commission can play, and has played, a catalyst role, leading various players to develop better practices.
Law reform bodies work in the long-term justice agenda and they help inform government by presenting the best available research at the time and all the options that are available to government. They also act in a way that helps the citizens participate in their work. The Law Commission in a certain way was able to bridge some traditional divide in Canada between civil law and common law, between French and English and aboriginal culture. It was able to draw on civil law, common law, and aboriginal cultures to bring about and examine the range of solutions that would have been appropriate in a particular response. It then gives its work to different institutions and to Parliament through the Minister of Justice, who then tables it in Parliament, and can act upon it or not.
A law reform body does not replace a research department in the Department of Justice. It acts on different subjects. It acts on the infrastructure of law. It acts on making sure the infrastructure does not become disconnected from the reality of citizens. If you live in a society with a rule of law you don't want the gap between the reality and the law to be too large. That's the essence and that's its mission.
Why is it that the Law Commission is unique institutionally? Why is it useful? Why is it that it cannot be replaced by the two organizations that the minister has suggested could easily do the work?
The Minister of Justice explained the decision to eliminate funding by saying the work could be done by the Department of Justice or the Canadian Bar Association. Almost immediately the Canadian Bar Association said no, we can't do that work. It's very important, and this is a point I'd really like to stress, to note that at times problems of a legal nature cannot be resolved by the Canadian Bar. They are in conflict--they are representing the members. Some of the solutions to legal or social issues cannot be brought about simply by lawyers, and I say that as a lawyer. Law reform does not belong to lawyers only but to every Canadian. The point here is that the Canadian Bar Association, although it does great work, cannot draw upon as much of a multidisciplinary approach and have the credibility when it speaks on law reform.
I think the Department of Justice is also curtailed in this role. The Department of Justice must act on the immediate concerns the minister has. It's obvious at a time--for example, after September 11--when it was drawn into a heavy agenda of responding immediately to the emergency. What the Law Commission can do is to look at some technical, long-range issues that bear upon the efficiency of the legal system and its continuing relevance to the Canadian public.
What has the commission done and what are the things we can measure in terms of laws? I'm going to talk a little about the cost and I'm going to talk about the cost of the abrupt closure of the Law Commission.
It has been said by many, and they were quoted in The Globe and Mail and so on, that the closure of the Law Commission is a blemish on Canada's reputation as a leader in the world of law reform. To quote one:
||[They are killing] a program that had attention around the world and made Canada look good.
That was true. Canada had a Law Commission that was a leader in its strategy of engaging Canadians in its work. It was a strategy to have people participate in the work of the commission. It had high school contests on legal issues, and a program that was directed at young scholars to discuss issues that were relevant and so on. It had thousands of small meetings throughout Canada--in the Yukon, New Brunswick, Newfoundland--discussing some issues of relevance to the law system.
In addition, and I think this is another part that should be considered here, the Law Commission of Canada Act says the Law Commission must work in partnerships. It established throughout its nine years of existence many partnerships, and all these partnerships, obviously, are now being jeopardized; some partners have some of their work highly jeopardized by the abrupt closure.
The list of partnerships includes the North-South Institute, the C.D. Howe Institute, the Indigenous Bar Association, UBC Press, Les presses de l'Université Laval, CPRN , NALL, the Democratic Reform Group, SSHRC, the Conference Board of Canada, etc.
In its work the commission, because it was a small agency, had to create partnerships to increase its research budget. The way it worked was to go to SSHRC and say: one issue that came from our consultation is that people are preoccupied, for example, with the difference between private security and public security and police—there's an increasing number of private security guards. What does this mean for our legal system? They would ask SHHRC to create a theme, for example, on this increase in security.
It was thus able to translate the needs and worries of Canadians about their legal system into a research agenda through partnerships. It was quite innovative and very efficient in this way.
Of all the organizations that were connected with the Law Commission, and all the partnerships—I haven't mentioned them all, obviously, the student co-ops, elders' law conferences, and so on—there are three groups I want to discuss particularly whose voice is very hard to gather in law reform. The commission did some particularly interesting work, and I think we should take note of how much.
The first one is with youth voices. Over the years the commission had supported a partnership in schools to develop a contest in high school dealing with, for example in one year, the vulnerable workers—working as a teenager. We know there are a lot of accidents when teenagers start to work, because they don't know what the laws are and also are taking undue risks. This contest not only brought a bit of sensitivity to the issue, but also engaged youth in reflecting on how in fact they could improve and diminish the gap between law as promised and law as lived.
Youth voices, I think, is a particularly big loss here.
Concerning older adults, the commission had developed a program that involved older adults in defining some issues for them.
And in terms of aboriginal voices they had a longstanding partnership with the Indigenous Bar Association and many projects with respect to aboriginal issues. I think this is a real loss, because it was a matter of trust to establish it initially and to help them be involved in this project.
I will conclude.
Groups and organizations are not the only ones that have suffered from the elimination of funding for the commission. You must also consider all the volunteers and all the people who have taken part in the forums organized by the commission in the past nine years. The price that must be paid is the price of confidence in government.
These people who have taken part in various forums in the past nine years are now facing the sudden disappearance, without any consultation, of the Law Reform Commission of Canada. This closing has not been done in a very transparent manner. It wasn't proceeded by a consultation or evaluation, unlike its implementation, which was preceded by two years of consultations of a very large number of groups and constituents. It's a major loss for all those who took the risk of expressing their views and who took part with all their soul in the law reform effort in Canada.
Thank you, Mr. Chair. I'll make the first part of my presentation in French, the second part in English, and the conclusion in French.
I would like to thank the members of this Committee for inviting me to testify about the abolition of the Law Commission of Canada, a de facto abolition, since the commission, lacking funds, will close its doors December 15, 2006. As for the de jure abolition, it will have to wait for the revocation of the act creating the Law Commission.
Moreover, I want to note at the outset that I would obviously have preferred that such a discussion with the members of the committee and other actors had taken place before the decision to eliminate the funding of the Law Commission, and this for reasons of transparency and out of respect for the Canadians, who, until the government's announcement September 25, 2006, were actively engaged in several Law Commission projects.
As president, it is my duty to inform you of the impact the closure of the commission has on current projects. Before I comment on these projects, allow me to address, in a general manner, the impact of the closure.
The loss of the Law Commission will deprive the government, Parliament and the judiciary of independent advice from an entity that drew on the ideas of some of the best experts of various disciplines. More importantly, it will deprive Canadians of a non-partisan forum in which they are invited to debate fundamental questions of our society. Diverse points of view were expressed in a climate of confidence due to the independent nature of the commission. The commission, through its studies and reports, conveyed these points of view to Parliament. The commission has no walls surrounding it. Law reform discussions were transparent, open to all people from all walks of life. I am not aware of any other legal fora of this kind at the national level.
In addition, as I indicated to the Minister of Justice on September 25, following the government's decision to eliminate all funding to the Law Commission, Canada will now have the peculiar distinction to have eliminated a federal law reform agency for a second time in 15 years. The impact of this decision is that Canada is distancing itself from the model adopted by other countries such as the United Kingdom, Australia, New Zealand, Ireland and some 30 others. I believe it is important to question the reasons for our difference.
Having made these general comments, allow me to deal with the consequences of the closing of the commission in a very concrete way. I will only deal, given the limited amount of time, with three of the projects that were to lead to reports to Parliament. The commission was also working on other topics, including what's a crime, age and law, and financing on the reserves. Some of these were in an advanced state of completion. Also, we tabled a report on policing in July of this year.
The first project was on globalization. Canada has felt the impact of globalization on all the various facets that shape its society. One example is the growing influence of international law on domestic law, a recent phenomenon that deserves further study.
In March 2006, the Law Commission released its discussion paper on globalization, which I have here. In the paper the commission asked what should be the role of various domestic actors, such as the federal executive, parliamentarians, Parliament, provinces, judges, and non-governmental organizations with regard to the negotiation, acceptance, implementation, and application of international law instruments, and how these could be rendered more transparent, participatory, and accountable.
The commission also examined the issue of when legislation should have a reach outside Canada. To pursue this question, the commission recently funded research on extraterritoriality. A contract was awarded to four scholars from Dalhousie University who, for $10,000, prepared a 100-page study on this issue that is now available on our website in both official languages. We have also funded research by the Conference Board of Canada to determine the business perspective on international corporate social responsibility.
We were planning a host of activities this fall and early winter, including discussions with current and former parliamentarians and the federal government and ongoing discussion with provincial governments. As a consequence of the closing of the commission, these will not happen.
The work of the commission could have proven valuable in further exploring the role of Parliament with respect to these issues, a role that was alluded to in the Speech from the Throne, which indicated: “Significant international treaties will be submitted for votes in Parliament.”
The second project is indigenous legal traditions. Starting with the recognition that indigenous peoples were the earliest practitioners of law in what is now Canada, the Law Commission set out to explore how the regeneration of these traditions might be supported and how greater space might be made for them in the Canadian legal landscape. The commission produced an innovative consultation package consisting of a discussion paper, which I have here, a 30-minute video documentary, which is on a CD here, and an in-depth research paper by a leading scholar—in fact, a 200-page paper.
We are all aware of the critical importance of addressing the situation of aboriginal peoples in Canada, of reconciling the relationship between aboriginals and non-aboriginals, and of improving the economic, social, and political health of aboriginal communities. The research conducted by and for the Law Commission provides clear support for the conclusion that the development of successful aboriginal communities is directly linked to real control by aboriginal peoples over decision-making, including decisions on the enactment and enforcement of laws.
Our research also highlighted, however, real challenges to greater recognition of indigenous legal traditions, the challenges faced by communities trying to regenerate their tradition, issues of applicability, issues of equality, issues of accountability.
The consultation package was delivered to the commission just days following the government announcement that it was closing the commission, and it has just been released. I want to thank my fellow commissioner, Mark Stevenson, who, at his own cost, attended a meeting of the Indigenous Bar Association two weeks ago, where the consultation package was released.
Obviously, the closing of the commission cuts this important work short. The release of the package was to have been followed by a comprehensive set of consultations. Perhaps most importantly, the elimination of the Law Commission removes an important neutral voice from a highly politically charged debate.
The third and last project I'll go into detail on concerns vulnerable workers. This is a project that looks at ways in which Canada's work laws are out of sync with the reality of the labour market today. Our research revealed that almost a third of Canadian workers today work in non-standard arrangements: contract, part time, self-employment, etc. As a result, increasing numbers of workers in Canada do not benefit from such legislated rights and protections as employment insurance, the right to refuse unsafe work, overtime compensation, and the right to bargain collectively.
These same workers do not often have access to employment-related benefits such as extended medical, pension, and dental plans. The Law Commission discussion paper released in January 2005 looked at this trend and considered what should be done.
Earlier this year we commissioned research from a team that included two of the leading scholars in the international labour law community--Brian Langille from the University of Toronto, and Guy Davidov of Haifa University--to explore practical but creative solutions to the problems identified in the discussion paper. This innovative research, which was well under way when the government announced the closure of the commission, was being performed at a cost of $40,000. It would have formed the backbone of our final report to Parliament. The opportunity to present innovative recommendations to address a complex and pressing social issue affecting millions of Canadian workers has been lost as a result of the closing of the commission.
In conclusion, overall, the commission accomplished a great deal in the past nine years with a $3.2 million annual budget, which has remained the same since its creation in 1997, and with limited staff. The commission was able to leverage more than $200,000 in partnership money annually. On several occasions, it obtained and benefited from eminent scholars' and civil society's impact at no cost and pursued an ambitious law reform research program at little cost to taxpayers.
Why was the commission able to accomplish this? I believe the Law Commission of Canada could accomplish this because of its reputation for neutrality, for thoughtful work and for its ability to provide a voice to those who would not or could not otherwise participate in law reform.
Good afternoon. Thank you for inviting me to come and testify today.
John Carpay is my name. I'm the executive director of the Canadian Constitution Foundation. We are four and a half years old, as a foundation. We arose in support of the litigation in British Columbia launched by a gentleman named James Robinson, also known as Nisga'a Indian Chief Mountain, or in Nisga'a, Sga'nisim Sim'augit . Our foundation has more recently decided to expand its mandate and take on other cases and research projects.
Doing my research on the Law Commission of Canada, and looking at the website, I note that the mission of the Law Commission of Canada is to engage Canadians in the renewal of the law to ensure that it is relevant, responsive, effective, equally accessible to all, and just. I've always thought this was the mission of Parliament. Again from the website, the Law Commission is mandated to systematically review the laws of Canada to determine whether they continue to meet the needs of society. I put it to you that this is also your job as MPs—to systematically review the laws of Canada to determine whether they continue to meet the needs of society.
As for engaging Canadians in the renewal of the law, that too is something that you do every day when you listen to your constituents—hear from them by e-mail, phone, fax, personal contact, and so on. To judge by their mission, there is no need for this organization or for it to be funded, because this mission is already being fulfilled by you who are seated here today.
Some might point out, correctly, that Parliament needs help. With that I would agree. But Parliament is able to get help from numerous sources. For example, we have the universities, the law faculties. We have law professors, who, when not busy teaching, are paid to work full time in reviewing, studying, and analyzing the law. There are dozens, perhaps hundreds, of law professors who are doing this work every day. We have public policy research institutes. We have the Institute for Research Public Policy, in Montreal. We have the Canadian Centre for Policy Alternatives. We have the Frontier Centre for Public Policy, the Montreal Economic Institute, the Atlantic Institute for Market Studies. All of these research groups, these think tanks, have researched on legal topics, and there's nothing that stops them from doing so.
We also have advocacy groups. There are women's groups of various kinds—feminist groups, traditionalist groups. We have environmentalist groups. There are all kinds of advocacy groups that are more than happy to provide the government with legal research upon request.
Last, but not least, we have all the government departments. All of them—not just the justice department—have their legal components.
Everything that the Law Commission is providing is already done elsewhere. There is also a difference in accountability. If you have the Frontier Centre for Public Policy doing research, it is accountable to its supporters and its donors. If it's not producing quality research, then the donors are not going to keep giving it money. For this program, however, there is no accountability. The same goes for advocacy groups. There are various advocacy groups that regularly produce legal research and recommendations on the reform of the law.
Another part of the mission of this group is to recommend improvements in the law. Who could be against that? Nobody. But not everybody is agreed on what constitutes an improvement. Not everybody has a similar vision, a similar perspective.
Today, I see before me representatives of the four political parties. There are at least four very different visions of what constitutes an improvement, of what is justice. There are different perspectives and there is no unity on the subject.
It's very easy to say that the Law Commission recommends improvements, but not everybody will agree on what constitutes an improvement. Looking at some of the previous recommendations of the Law Commission and its predecessor, not everybody would agree that a law to allow abortion on demand is an improvement. Some would think it is, some would think it's not. Not everybody would agree that eliminating incest as a crime is an improvement. Some would think it is, some would not. Lowering the age of consent from 18 down to 14, decriminalizing prostitution, replacement marriage with registration, and changing the definition of marriage are all things that some people would regard as improvements, while other people would not.
The question I have is whether it's fair to compel all taxpayers to contribute to recommendations that might be non-partisan in the sense that they're not necessarily strictly limited to one political party, but they're certainly not neutral, independent, objective recommendations. They're recommendations based on the views of the authors who prepared the research.
For these reasons, I think it's a very wise move to end the funding for the Law Commission of Canada, hopefully followed in the future by the repeal of the legislation that brings it into force, because it duplicates and replicates what is already available elsewhere, starting first and foremost with the very description of the mission of the Law Commission. That mission is pretty much akin to the job that Parliament is supposed to be doing, and if Parliament wants further input, it is available from many different sources—from the law professors, from the public policy research institutes, from the advocacy groups, and from the government's own departments.
Whether the commission made Canada look good around the globe, I don't know. If I were working for the commission, I suppose I might be inclined to say that myself. But small meetings take place all across the country, and they will continue to take place without the Law Commission.
I find it interesting to hear the Law Commission described as small. It has close to a dozen staff. I would be thrilled if I had a dozen staff working at our foundation. We could get a lot more work done. A budget of more than $3 million per year would also be a great thing to have. But if we ever do have that some day in the future, it will be because Canadians voluntarily contributed to our foundation and to our mission, which is to promote the constitutional freedom of Canadians through education, communication, and litigation.
In conclusion, nobody is suffering from the termination of funding, except for those individuals who agree with the recommendations that the commission has come out with or might continue to come out with in the future.
I welcome your questions.
I'll make four comments. First, it's said that the commission
is not accountable.
I think that's an insult to Parliament. Section 6 states, in referring to the commission:
We are accountable to Parliament through the Minister of Justice. We have appeared in front of this committee over the years many times. We always file our annual report. We have filed a performance report and a report on plan and priorities. If you look at the last report of the Public Service Commission, which was issued right after the closing of the commission, in terms of staffing procedures, the commission is one of the top-rated agencies in the government.
So I find that insulting to Parliament.
Second, with all due respect, I find that Mr. Carpay is using the logic of the absurd. He says that Parliament can take on our mandate and that the commission is therefore unnecessary.
He says there's actor A, actor B, professors and actor C. So his logic is that of the absurd. We could eliminate everyone, and Parliament could do everything. In fact, you could decide that one day it's the commission and the next it's Parliament. That's not very constructive.
Thirdly, on duplication of work, for law professors the record is clear. Law professors work with the commission. Many centres have worked with the commission. You can look at many statements since this announcement, and certainly they felt that our work was useful. When I think about electoral reform, in terms of the duplication of work that report has been used over and over again. I would not say that this was a duplication of existing work, just as one example. Certainly in relation to the abuse of children by public institutions, the first report, which was a reference by the government, was not duplication.
The last thing I would say is that you mentioned a lot of our recommendations. I think my colleague here was shaking her head, because we don't recognize these recommendations of the Law Commission of Canada. When we're talking about an increased budget, I would hope that it would help to improve the information that is given publicly here today as to what the commission has recommended in the past. I think we have to set the record straight on that.
Thank you very much.
Before I start, I just want to pay tribute to Heather McFadgen in my riding for her tremendous support and work in the Law Commission. As I said in Parliament, I think it's reprehensible that you were cut, especially since it falls into a pattern of cutting services to the most vulnerable in this country.
I thank you for your presentations, Nathalie and Yves, on a number of valuable projects you've done that are not duplicated elsewhere, not replicated elsewhere, and for being accountable to us. Members of three parties in Parliament have really supported your work. I don't want you to comment on this, but you were created by an act of Parliament on April 21, 1997, so why close your doors? They can't close your doors. Use those volunteers you're talking about and keep it open so you can talk.
I have one major question. This is only for Yves Le Bouthillier and Nathalie Des Rosiers. It's on two areas. I'm a bit disappointed we don't have enough witnesses on aboriginal issues and anti-poverty issues. You've covered some aboriginal aspects already, but I'd like each of you to comment with something you haven't said yet on any way that you have or can help in the aboriginal field or in the anti-poverty field--obviously, again, the most vulnerable who can't represent themselves.
Finally, my riding is the farthest one from Ottawa and has one-thousandth of the population. Who's likely to have what kind of input on law in Canada? Have you reached that far, being the great institution in Canada that you are?
I'll give three short examples of what we have done, too.
Last February we organized a very important and by invitation forum on Crown-Métis relationships. There were a lot of people from Justice Canada and there were a lot of Métis experts, experts from all over. It was held in Winnipeg, and at the forum we looked at very important issues. One, for example, was whether the Métis fall under the jurisdiction of the federal government, the provincial government, or do they fall under section 91 of the Constitution under federal government jurisdiction. So that was an important discussion, and we are going to publish, in both languages, the proceedings of that two-day discussion.
As a second example, one of the issues we were working on that would have led to a report to Parliament was financing on reserves. As you know, under sections 89 and 90 of the Indian Act you cannot have security on real or personal property on a reserve. It therefore makes it difficult for aboriginal individual members and bands to get financing in many circumstances. We have talked with the leading experts in Canada on this issue, and one of our commissioners, Rod Wood, from the University of Alberta, who is one of the top security experts in Canada, was the person who was leading us to write our final report on this.
The third example I want to mention, because I know you are from the Yukon, is that we went to the Yukon on a number of occasions. We had your citizens call us, one about electoral reform, because they looked at our work and were inspired by it. But we also met the members of the Carcross Tagish First Nation and also the members of the Teslin Tlingit Council. If you look at the video that we have, you will see that the elders there and members of the community expressed their voices. They do very important work, innovative work, in terms of regenerating indigenous legal traditions. I invite all members to look at this DVD.
Those two groups gave us a contribution that was invaluable, and I think that will be a lasting contribution to the Law Commission of Canada. I am confident of that.
Thank you, Mr. Chair. I'd like to welcome our guests.
First of all, so you don't waste any time asking me whether I'm a lawyer, I'll tell you that I'm not a lawyer.
of common law. It's just that I work on common sense. Common sense prevails.
I'd like to ask a question. Appendix A contains the letter that was sent to Justice Minister Vic Toews. I don't want to waste too much time with the other witness. I believe he's on the side of the Conservatives, who want to abolish all the programs, abolish the Court Challenges Program—we'll talk about that a little later—and abolish the women's rights promotion programs. That makes me think of the American system. I'm so glad to live in Canada, when I think of the great system we had until quite recently and that I wouldn't want to lose for good.
Let's see the people who signed. If I'm not mistaken, 238 people signed a letter to tell the minister that they thought he was headed in the wrong direction. Even Simon Fraser University supports you. Even the university professors signed the letter, and yet Mr. Carpay says he has the support of all the universities we're talking about.
If I understand your mandate correctly, you've been given the objective of gathering all that together. I can't imagine a professor at the University of Ottawa going to Manitoba to consult people and see what they need. I can't imagine a professor from the University Moncton going to Newfoundland or Fredericton. That's not his mandate. His mandate is to be at the university teaching our young people. That's his mandate.
What did the governments give your commission? They gave you the power to go and see citizens. In a democracy, a minority government can't pass laws and regulations and take things away from us without people having a right to say something. Democracy isn't that.
I've travelled in other countries. Some governments even asked us how to go about doing things. Even the government of South Africa asked us last month what it could do to reach the people, to involve the people. When I was elected member, it was to represent the people. If we don't want to listen to the people anymore, if the government no longer wants anyone to help it listen to the people, I think it's making a fundamental mistake and that, at that point, we're headed toward dictatorship. If we don't have a counterweight somewhere, if we can't discuss differences, opposing views in public so that we are able to get the best, I think we're making a mistake and that this government is mistaken. It should remember that it's a minority. It doesn't represent the majority of Canadians.
If we were to vote today, what would the majority in Parliament think of all this? You wouldn't be leaving. You'd be here to represent Canadians. I'd like to have your opinion on my view of the matter.
Thank you, I appreciate that.
In the past twenty years, millions of tax dollars have been given to special interest groups to advance their politically correct causes through the courts. Groups like EGALE or LEAF have received hundreds of thousands of tax dollars to advocate.
Not all tax dollars flowed through the CCP, but these were some of the interests they advocated for: that people are entitled to collect welfare, regardless of the income earned by their common-law spouse residing in the same house, and by that I mean you get a welfare cheque even if you're living with someone who's earning a decent income; that non-citizens should acquire the opportunity to avoid deportation by giving birth to children in Canada; that a pregnant woman has the right to continue harming her unborn child by sniffing glue; that more tax dollars should be spent on legal aid and on health services for non-citizens; that physical fitness standards for firefighters should be lowered to accommodate women; that freedom of political speech should be restricted in the name of equality and Canadian values; that employment insurance benefits should be extended to people who have worked fewer than 700 hours in the preceding one-year qualifying period; that the state should prohibit prayer and peaceful protest near abortion clinics; that legally owned guns play a significant role in perpetrating violence against women and children; that the term spouse need not refer to a member of the opposite sex.
Through their tax dollars, all Canadians pay to advance LEAF's public policy agenda, whether they agree with it or not. Eliminating the CCP puts all groups on an equal footing, at liberty to raise funds for their own purposes through their own supporters.
In addition to LEAF, other groups have also received tax dollars through the court challenges program to argue that prisoners convicted of serious crimes should have the right to vote; that receiving welfare payments is a constitutional right; in support of the Canada Elections Act restricting us on citizen's advocacy that is independent of political parties—that is our infamous Harper versus Canada; that it should be a criminal offence for parents to spank their children; that a person convicted of importing large quantities of cocaine into Canada should receive a lighter sentence if they are black single mothers; that sexual orientation is akin to race, gender, and religion and should be added to human rights legislation; that a Guatemalan citizen with a criminal record deemed to be a danger to the public should have an automatic right to appeal a deportation decision; that marriage should be redefined to include same-sex couples.
Some Canadians will certainly agree with some of these public policies, but is it right that all Canadians, including those who disagree, are required to pay for this type of advocacy? How would LEAF supporters feel if their tax dollars were used for court challenges to recognize the rights of unborn children? How would a member of the Canadian Labour Congress, a recipient of tax dollars through the CCP, feel if tax dollars paid for court advocacy against compulsory union membership? Individuals and organizations have every right to use the courts to press for public policy change, but requiring people to pay for advocacy with which they disagree does nothing to a person's conscience.
Equality demands that government refrain from spending tax dollars to favour one side on any controversial issue. Ending the court challenges program creates a fair and level playing field for all Canadians, whatever their views might be.
I thank you, Mr. Chairman.
Good afternoon, Mr. Chair, ladies and gentlemen members. I was informed, roughly a week or 10 days ago, that I was going to speak on this subject today. I would have liked to have a little more time to prepare what I'm going to say today.
As I mentioned previously, our foundation arose in 2002 in support of constitutional litigation launched by James Robinson in British Columbia, who challenged and continues to challenge the Nisga'a agreement as violating his equality rights and other constitutional rights as a Canadian. You might be interested, or perhaps surprised, to learn that our foundation actually applied to the court challenges program for funding in 2003. That was before I came on board as executive director. I don't know if I would have made the same decision or not, but that's irrelevant. In 2003 we applied for funding. We said we'd like some money to support this court challenge of Nisga'a Indian Chief Robinson, Sga-inisim Simaugit, to pursue his section 15 equality rights. We were denied funding by the court challenges program because our particular litigation did not fit the particular ideology and particular vision of the court challenges program.
In spite of that denial, we were still able to raise money from Canadians who support Chief Mountain's challenge, and this litigation is still ongoing because Canadians have been persuaded of the justice of Chief Mountain's cause, and they have voluntarily contributed toward that lawsuit. I've heard the argument that the court challenges program should receive tax dollars because it promotes justice by assisting groups and individuals in pursuing justice in the courts. This argument would hold water if everybody agreed on what justice is.
However, that's not the case. Various visions of justice are being expressed here today. I see representatives of the four political parties. Each political party has its own vision of justice. We don't all agree on what justice is. In fact, we know that this question was debated at the time of Plato and at the time his work The Republic first appeared.
Since there's no consensus on what justice is, it isn't accurate to say that this program helps people defend justice. That's simply not true. It is used to help people defend a certain vision of justice. After listening to Mr. Williamson's list, some people in this room and outside of it could agree with some, most or all the cases that were mentioned. However, there are people in this room and elsewhere in the country who do not at all share that vision of justice.
For example, if you consider the notion of equality, for some people equality means equality of opportunity or equality before the law, with the differing outcomes, different results, that will occur. For other people, equality means not equality of opportunity but equality of condition or substantive equality, which I take to be the position of the court challenges program, although I don't purport to speak for them. This is an example. There can be very sincerely held and different views as to what equality is, and so my central point is that the court challenges program does not fund justice. It funds one particular vision of justice. The court challenges program does not fund equality. It funds one particular vision of equality. The court challenges program doesn't fund language rights. It funds one particular vision of how language rights should be implemented. It is wrong, morally, politically, and ethically for the federal government to force all Canadians to pay with their tax dollars for the promotion of one particular view of justice that some people agree with and others do not.
Chief Mountain has persisted and persevered in his litigation without any funding from the court challenges program since the statement of claim was filed in 2000 and since 2003, when we were denied funding. Other individuals and groups should do likewise.
I first need to come clean that I am also the most recent past chair of the court challenges program. I was nominated to the court challenges program board by LEAF, served for seven years, and am now the immediate past chair. I need to tell you that before I start, because I actually have quite an intimate knowledge of the court challenges program and I'm currently on the national legal committee of LEAF.
I think it's important to make a fundamental point before I start. What is this shared vision that we have? I've just heard two people talk about differing visions of equality, differing visions of justice. We have a vision that this government has adopted. It's called the charter. That is the common vision. When I listen to my friends who have just spoken, what I hear is a disagreement about the vision and an attack on it by attacking the court challenges program.
The charter talks about rights. It doesn't talk about privileges, which can be withdrawn and granted at the will of Parliament. Our charter tells us that an essential part of our democracy is to ensure that the will of the majority will be always attentive to minority rights. This is our common vision of what justice is. In this way, the courts, through the charter, play an important role in balancing majority rule with minority rights.
Majority rule that violates fundamental minority rights is not part of our shared democratic vision, nor does LEAF believe it should be. The charter recognizes that minority rights are not always protected by the majority. In the minority community, which I come from, we have come to understand that true democracy is not simply majority rule; it means protection of the minority within a system of democratic majority rule. It's a fundamental principle that I think is worth restating.
The government, therefore, has an essential role in the proper functioning of our democracy, which means the government has to ensure that minority rights are protected. What value do those rights in our charter have if they cannot be enforced? What value is our Constitution if it has no effect? Ensuring the protection of minority rights is all about protecting and promoting our democracy, not about subverting it.
Access to the courts is essential for equality-seeking groups precisely because they are often members of disadvantaged and minority groups that are subject to the sometimes discriminatory effects of majority rule, whether intentional or unintentional.
The Supreme Court has affirmed its longstanding commitment to the ideal that it is the government's responsibility to govern, and governments are obligated to govern in accordance with the Charter of Rights and Freedoms. Government action that violates the charter must be measured against principles and values of substantive democracy.
Unfortunately, one of the unifying and defining features of many forms of disadvantage and discrimination is poverty. It's axiomatic that the disadvantaged and marginalized groups that the charter seeks to protect do not have the financial resources to mount court challenges, nor the political power to influence the majority. This is precisely why we have the charter and why we need the court challenges program: to redress the fiscal and power imbalance that exists and to ensure minority rights are respected.
The court challenges program permits the conduct of litigation to mediate disputes about equality and discrimination in a civilized and highly controlled manner before the courts. I suggest that it's naive to think the underlying disputes will disappear if the program is eliminated. The disputes will continue. It's just that they will be resolved in a different manner by a more desperate and more marginalized group, perhaps in a manner that is less civilized and less controlled.
Eliminating the court challenges program is removing the ability of disadvantaged groups to participate in the court process to resolve their disputes. I suggest that is not a good idea.
The government needs to think realistically about the waste of taxpayers' money that arises when disputes are not channelled into civilized and highly controlled courses, such as before the courts. Either way, the taxpayer is going to spend money. We believe the process and the promotion of constructive resolution of disputes through the courts is a preferred approach.
LEAF also believes that working together to create an equitable society contributes significantly to real national security.
The mandate of the Fédération des associations de juristes d'expression française de common law is to work in favour of access to justice in French and to promote and defend the language rights of the Francophone and Acadian communities.
It represents seven associations of legal practitioners in various provinces. The only provinces where there are no associations of French-speaking common law practitioners are Prince Edward Island, Newfoundland and Labrador and Quebec, obviously, because we really serve the Francophone and Acadian communities.
The FAJEFCL promotes access to justice in Canada's both official languages. I think that's the key element here. Earlier reference was made to the concept of justice. Here we're really talking about access to justice, and that's the key point.
I'd like to talk a little about language rights. What language rights are protected and are the subject of funding by the Court Challenges Program? First, there's our children's right to an education in their language across the country, that is to say to be fully Canadian and to enjoy the benefits they should have as Canadian Francophones.
Language rights in the schools and schools management are matters we have been able to secure through highly controversial court challenges. If you are familiar with the history of Francophones in this country, you are aware of their epic struggle to acquire their education rights.
A second, very important point concerns language rights in the legal field, that is to say access to the courts. One of the key factors in access to justice is to be able to communicate in the language of one's choice with stakeholders in the justice administration system, that is to say with judges, attorneys, and to be able to file one's documents and to have access to the rules of procedure and so on in one's language. That's another very important language right. There have been court challenges on this point and major gains have been made in the past few years.
As regards legislative bilingualism, as you know, at the federal level, in Manitoba, New Brunswick and Quebec, all laws and regulations must be passed in both official languages. That's a right enjoyed by Francophones in Canada and Anglophones in Quebec.
As regards the language of work, language of service and the language of communication, this is mainly protected at the federal government level and in New Brunswick. Here again, this is a language right protected by the Constitution of Canada and that is the subject of court challenges.
The language of service is the subject of far fewer challenges. Here I'm talking about section 20 of the Canadian Charter of Rights and Freedoms. This is an area that remains to be explored, and there are still a lot of questions for which there have not been any answers.
There is also the unwritten constitutional principle of minority protection. You are probably all aware of Montfort Hospital and the principle of advancement towards equality. These are two important concepts for the country's linguistic minorities, whether they be Francophone or Anglophone.
Over the years, most of the unwritten constitutional principles, in particular the principle of advancement toward equality, have stemmed from numerous court challenges, largely funded by the Canada Court Challenges Program. And let's not forget Montfort Hospital here in Ontario. Over the years, the Court Challenges Program has received very good evaluations. You can read the reports, which are published annually on the Web site or in paper format.
Limited or reduced access to justice is the main consequence of the cuts to the Court Challenges Program. Some people may not like the content of justice, but I think everyone understands what access to justice is. You may be able to appear before the courts or you may not because you don't have the financial means to appear, defend and promote your interests. Access to justice must not be confused with the content of justice.
Access to justice is being very significantly reduced for the Francophone and Acadian communities, whether it be in education or with regard to the courts or services.
What individual, what parent in Prince Edward Island can afford to spend $500,000 to defend, before the Supreme Court of Canada, his right to an education in French for his children? That's access to justice. To all intents and purposes, that means that, since Francophone parents in Prince Edward Island aren't in the majority in the region where they live, they may have to pay $500,000 out of their own pockets to gain access to education in French. That's what we're saying.
As Canadian citizens, we have to have Canadian standards. There are Francophones in the country living in regions where they are not part of a Francophone majority, and those Francophones should not be penalized and have to pay $400,000 or $500,000 to have access to education in their language.
I'll speak very quick then. I apologize to the translation people.
The bottom line is there is a good debate going on here, Mr. Thompson said it right, but the debate is really one of whether we're going to have, to put it plainly, any government funding in policy development and advocacy groups. We saw with the women's groups cuts and the cuts to come that the government doesn't feel it should be involved in funding advocacy groups or think tanks, and all of this “thinking”—and I'll use that term liberally—should be done by the private sector. And with that respect, I respect the points of view, but I do not agree with the points of view of Mr. Carpay and Mr. Williamson.
So I don't have any questions to ask them.
However, I'm asking myself some questions because I come from New Brunswick, where we have language rights under provincial laws and, of course, the Canadian Charter of Rights and Freedoms, particularly under section 23.
Notwithstanding the fact that I tell all committee members that New Brunswick is a virtual paradise, we have problems achieving linguistic harmony. We've obviously used the Court Challenges Program to support the language rights of Acadians in New Brunswick.
If this program, which can help a minority group representing 40% of the population in New Brunswick, is cancelled, what will the Francophone linguistic communities outside Quebec do, in Manitoba or Edmonton, for example, if they can't rely on this program?
My question is for Mr. Rémillard. In the language field, what will happen if people can't afford a lawyer in order to assert their rights under the Canadian Charter of Rights and Freedoms?
That doesn't just apply to education. Mr. Williamson may say that
the parents of children can probably afford to get together and fight for a school, as we had to do in Moncton, New Brunswick, against the bilingual government. But in minority rights cases, such as the coverage of the RCMP in a province, you can see that may not get the groundswell of public support, but it's nonetheless very important to the francophones and Acadians in New Brunswick, for instance.
And the bottom line is—and speaking as quickly as I can with my four minutes or less—what are we going to do without this program to bolster minority language rights in New Brunswick and in the rest of the country where the minority is even less secure?
An hon. member: Don't get angry!
Mr. Yvon Godin: No, you won't make me waste my four minutes.
The Court Challenges Program has nothing to do with a form of justice that gives a response. This program gives an individual a chance to appear before a judge in a given system, unless the government does not believe in our system. In that case, we shouldn't have courts of justice or judges, and we should abolish lawyers. The government, through Minister Baird, clearly told the House of Commons that it wouldn't pay people to challenge its laws because they're perfect and must be complied with.
If that's the case, if we want to save money, I'd like the taxpayers' representative to tell us whether that's indeed what he wants. Do you want us to completely abolish our democratic system in Canada? Is that the case?
Otherwise, I'll propose something to you, since we have to save taxpayers' money. When a citizen appears before the court and wins his case, the government won't be entitled to appeal from the judge's decision because it would be using taxpayers' money to do so.
As Francophones and Acadians, we represent a minority that was deported by boat to Louisiana in 1755. When Louisiana suffered damage as a result of Hurricane Katrina last year, we didn't even help in the reconstruction. That's what it is to be a minority. That's what happened to us.
Let's take the example of the Francophones in the riding of Acadie—Bathurst whom the government wanted to transfer to Miramichi, where 70% of the population is Anglophone. It was through the Court Challenges Program that we were able to make ourselves heard and to win that case. The Francophones of Prince Edward Island won their case concerning their schools. It was also through the Court Challenges Program that that was done.
I'm asking you the question honestly. I know you support this. I'd like to know from the people who want to save taxpayers' money if they're opposed to it.