Thank you, Mr. Chair. I'm pleased to appear before the members of the justice committee, and at your request my remarks will focus on the Law Commission of Canada. I understand that if there are some questions then on the issue related to the judges' salaries, I'll see if I'm in a position to be able to answer them; if not, I'll take any questions and simply defer those answers for a more appropriate time to make sure I have the information before me.
As you indicated, Mr. Chair, today joining me is Mr. John Sims, the Deputy Minister of Justice and Deputy Attorney General of Canada.
Mr. Chair, when I first appeared in front of this committee last May, I said that the Department of Justice has a very real impact on the lives of individual Canadians. As a reflection of that impact, the Government of Canada spends, within the justice portfolio, more than $1.4 billion annually. This includes the Department of Justice Canada, the Courts Administration Service, the Supreme Court of Canada, and various tribunals and commissions.
Improving the justice system is one of the government's top five priorities. We have firmly committed to making Canada's streets and communities safer. At the same time, this government has also promised to spend Canada's tax dollars responsibly.
Mr. Chairman, in budget 2006, Canada's new government promised to review our programs to ensure every taxpayer dollar spent achieves results, provides value for money, and meets the needs of Canadians. On September 25, 2006, we carried through on this promise by finding four areas where Canadians can save money: first, by eliminating programs that were not providing value for the money; second, by cancelling non-core programs; third, by redirecting unused funds; and last, by achieving financial efficiency.
As part of that promise, the government has eliminated funding for the Law Commission of Canada. By doing so we will be saving the Canadian people nearly $4.2 million over two years. That money is going directly to pay down the debt.
The Law Commission of Canada was an independent federal law reform agency that advised Parliament on how to improve and modernize Canada's laws. However, when we looked at the various agencies of government, it became apparent that there was nothing the Law Commission of Canada did that was particularly unique or that could not and was not being carried out by other institutions.
During its tenure the Law Commission of Canada tabled a number of reports to Parliament, which were generally instigated by the Law Commission of Canada as a result of issues that it had identified. These included one on participatory justice; one on security interests; another on secured transactions; a fourth on electoral reform; another on adult relationships; and the most recent report, which was tabled in July of this year, on policing in Canada. They also produced a report on institutional child abuse at the request of the government. In 10 years—and this is an important point to make—since the Law Commission of Canada was created, during nine years of which there was a Liberal government, the report on institutional child abuse was the only report requested by the government. So in all those years there was only one report ever requested by government. These reports are still available within the public domain should the occasion arise to draw upon their contents.
The Law Commission of Canada was specifically structured to draw upon the expertise of people working in their respective fields. It was a very small organization that relied heavily on contractual relationships with outside experts. Across Canada, as I speak, there are independent research bodies at all levels inquiring into how Canada's laws might be improved, much as the Law Commission had been doing. They include provincial law reform commissions; educational institutions with policy capacity--for example, the University of Ottawa is leading the On the Identity Trail project, which is a broad partnership of the university, government, and industry players with an interest in issues related to identity and privacy--also independent non-governmental organizations interested in law reform, like the Canadian Tax Foundation or industry-specific organizations like the Canadian Bankers Association; also working groups that involve the federal, provincial, and territorial ministries responsible for justice; and finally, the private sector and research functions within federal and provincial government departments.
These groups are also carrying out valuable cooperative work with international associations. Many of these organizations provide their input whenever a law is getting reviewed or updated.
It was from this very same body of experts that the Law Commission of Canada drew its advice. Those very same experts are still out there contributing to policy research within their chosen fields; therefore, the capacity has not been lost at all by shutting down the commission.
Furthermore, I'm very confident that, should I need additional support and independent advice over and above what these organizations may already provide on any given law reform initiative, my own department has a capacity to foster partnerships and consultations with whoever may be appropriate for the task. For example, within the recent past my department has engaged in broad consultations with the Canadian Forum on Civil Justice; GPIAtlantic, an independent, non-profit research and educational organization; the Dalhousie Health Law Institute; and the Saint Mary's department of criminology.
As you all know, the Department of Justice has the ability to contract for legal research as it sees the need arising. There's a wide range of subject matter experts with whom we have relationships and with whom we can partner in addressing issues of reform or in conducting independent inquiries in areas of legal interest. We do not need to fund a standing organization for decades based upon the possibility that this need will arise. Again, I reiterate that in 10 years there has been only one request by government for any advice from that institution.
Mr. Chairman, I must state here that I support the idea of legal research and law reform. I also support our government's approach to creating efficiencies by eliminating programs and services that can be provided by other parties. In addition, I support the idea of public consultation, which is another service that was provided by the Law Commission.
Consultation can take many different forms, and it can occur at different stages of the law reform process. Consultation mechanisms also very much depend on the topic at issue. For example, this government has recently worked closely with the police associations to help find ways, through legislative reform, to better protect Canadians. Our approach is focused and task-oriented. Through this approach, we have succeeded in quickly and efficiently addressing the government priorities that Canadians voted for last year. It is clear, therefore, that we will continue to learn about issues surrounding the justice system and potential reforms through other mechanisms while still providing value for Canadian taxpayer dollars.
This government does not see a need to fund an organization that largely acts to engage the services of other organizations to carry out the research. I think that's an important point to remember. They essentially did not carry out the research directly, but in fact contracted out to have the work done on their behalf. The Department of Justice will continue to develop and maintain direct relationships with those individuals and organizations that are engaged in policy development, and it does need an interlocutor like the Law Commission of Canada to do this.
In closing, Mr. Chairman, I wish to reiterate that our government is responding to the wishes of Canadians, and that the Department of Justice has been instrumental to that response. We are making changes to the justice system that will make Canada's streets and communities safer, and we are continuing to contribute to the effort to spend Canada's tax dollars responsibly.
Mr. Chair, I welcome your questions and the questions of the membership here. I look forward to your feedback.
Thank you, Mr. Chairman.
Thank you, Mr. Minister. Thank you for coming and giving evidence here, your témoignage.
It's important for us as Canadians to understand where this new government's coming from, and I'll put the cards on the table as far as the politicization of the Law Commission is concerned. The Law Commission seems to go in and out with the switch in Liberal and Conservative governments. The Law Reform Commission was a Liberal creation ended by the Mulroney Conservatives, and the Law Commission was a Chrétien device terminated by the Conservatives.
I'll leave that obvious political angle aside and ask you three basic questions.
One is, do you think our international marquee ability to be a leader in justice issues is damaged by the fact that in western democracies we would be alone now, aside from the United States perhaps, in not having an independent advice vehicle?
The second question is central. Will the work the Law Commission does and has done in the past be done by others? You rightly point out that it contracted its services to law experts, many of whom are on the faculties of our law schools. The question might be, did you consult with the deans of the law schools across Canada to determine whether this independent research on many areas of law is needed? I can cite the six that were being worked on: globalization, indigenous peoples, policing, etc. You mentioned some of them in your remarks. How sure are we that the law schools, which seem to be the only ones standing in this regard, will have the capacity to do that if they're not getting the funding from the Law Commission?
By argument, I say to you that the CBA is off the list of people who might do your research, because I'm sure you saw the letter in which they said they were taken by surprise to hear that the CBA, the Canadian Bar Association, could fulfill this role. I argue with you that the Department of Justice, which in many cases is making laws that are going to be contested by the independent research that might be needed in various areas.... I question whether the Department of Justice is the resource centre for this type of independent research; that's what it is, independent research.
With all respect, I throw out what I say is your red herring, that only once in 10 years did the government ask for a study. That's precisely the point, isn't it? This is supposed to be independent advice on important subjects drawn from the best experts, and not necessarily advice that you would ask for as Attorney General, or I would ask for as an opposition justice committee member. The indigenous peoples, which my friend Mr. Bagnell's going to get more into, is a very good case in point. Who's going to ask for that research? I sure as heck think it's not going to be the Canadian Tax Foundation or the Canadian Bankers Association. I put that to you in a somewhat argumentative way.
In short, is our international presence damaged by your decision to cut out the Law Commission? Will its work be done by other assets in the community, given that there's no money now for legal research in the universities, and finally, by whom? With the CBA and the government, the CBA is out of the question, and the government really can't be researching its own laws.
Thank you. I think those are all good questions.
In terms of just the political side you made, it's an important one. It indicates a different approach to who needs to be involved in getting independent research. There are often times, as the Attorney General, that I ask for independent research in particular cases, independent legal advice, where it would appear that the Department of Justice could be perceived to have a conflict. And that is done as a matter of course.
With respect to whether the work will be done, I taught at a university on a part-time basis for eight years, and I did so basically, if not on a pro bono basis, pretty well on a pro bono basis. The professors there--and I think it's standard right across the country--are given one-third of their time for teaching, one-third of their time for community issues, and one-third of their time for doing research in their field. They are paid to do that by the taxpayer of Canada. I'd be surprised to say that simply because $4.2 million wasn't available to these professors they would not carry out what they are, either under the conditions of their tenure or under the conditions of their contract, obliged to do. They do it on a regular basis.
You've indicated if we want specific advice. If we want specific advice, there are independent people who can do it. And I'm very surprised to hear that the CBA can't provide independent advice. They have always provided independent advice for all the years I've been coming to this committee. I haven't always agreed with it, but it certainly has been independent advice critiquing government bills. That has been an absolutely important function. And so for the CBA to say that they don't carry out that type of research, I find amazing when I look at all the publications that the CBA has done. You'll have to ask the CBA why they are discounting all of the independent legal research that they have done, not only for the House of Commons but in fact for the legal community in general. I find that a startling comment on behalf of the CBA. I haven't read the full context, so it might be taken out of context.
I see the Law Commission of Canada as simply being an administrative mechanism to hire individuals to do research. Well, I can tell you, we have people who are competent to hire those individuals inside the Department of Justice. It doesn't mean the Department of Justice lawyers will be doing the work. We will still, I anticipate, continue to hire people outside to do some of that work.
Good afternoon, minister.
A philosopher by the name of Valéry said that a government's greatness is measured by the way it treats its minorities and the value it places on knowledge. You understand that your government will go down in history with this issue.
With all due respect, there are no words to describe the degree to which your government's policies toward minorities—particularly Francophone minorities outside Quebec—disgust, repel and nauseate me. I can't imagine how a government can abolish the one and only program that would enable communities to appeal to the courts, and I hope, when you travel to meet with the spokespersons of the Francophone communities, that they'll tell you how mean and short-sighted your government is. Let's hope that you pay a very high cost for eliminating this capability for defending the Francophone communities.
That said, I want to talk about reforming the commission you're abolishing. I find your logic quite peculiar. Is there anyone in the federal public service who can prepare reports? We don't doubt that. This is definitely a point of view that we can receive. The specific characteristic of the commission is, first of all, its total independence. When it comes to orientations and public servants are involved—whether they be deputy ministers or any branch of a department—an organization loses some of its independence. You'll agree with that.
Furthermore, what surprises me in your argument is that UNESCO has reminded us that knowledge and events that occur in the world double every five years. It also recalled how important it is for parliamentarians to make decisions in an environment in which we have access to decisive and conclusive information.
What is your criticism of the commission? How can you prove to us this afternoon that there was really a duplication? I was very pleased to read what the commission wrote on same-sex spouses, Aboriginal persons and on voting reform and electoral life. We feel that the body of opinions it has produced generally falls within the debates on current issues for which we expect parliamentarians to have information.
Are we to understand that, for you as a parliamentarian, that the issue of having timely knowledge and available information from an independent organization is not important?
I'll conclude by telling you that a number of consultative organizations provide the government with advice. Will you one day be abolishing the National Council of Welfare or the Senior Citizens Council, which also provide information and orientations and publish opinions? The sole mandate of the Law Reform Commission of Canada was to report to the government; it could take initiatives on current issues.
This seems to me a short-sighted action taken by a government that attaches little value to knowledge. In my view, thinking that we can assign mandates within the public service shows a singular lack of vision, of a broad view and of generosity. I admit I find it very hard to understand you.
As regards Francophones outside Quebec, I'll never pardon the petty action your government has taken. You definitely won't redeem yourselves now. This isn't the same thing. It's obviously less serious to abolish the commission than Francophones outside Quebec.
It's as though you had a kind of aversion to everything that's knowledge or is likely to differ from what you think. In view of the fact that the senior public service analyzed your election platform, saying that it was rubbish and contained virtually nothing good, you should perhaps leave some room for reflection. It's also part of the greatness of a minister to be able to face views that do not come directly from government.
This action does your government no credit. It shows no greatness in the way you directing matters or govern the state.
Thank you, Minister and Deputy Minister, for coming.
I want to go on the record, as I have before, just at the beginning, to make sure people know I think it's an absolutely reprehensible cut and it fits right in within the pattern of the government cutting the most vulnerable in our society in a number of ways.
In this particular case, we've had evidence to the type of reports of people who were helped, the aboriginal people, the farthest from Ottawa, who would have the least chance to study things in my riding--the Teslin Tlingit Council, the Carcross/Tagish people, who are Tlingits, the people in the north, low-income workers, as we heard from in previous testimony. There's just no need for this type of cut.
The and the are using the bar association. And the bar association, on November 2, said, “An independent Law Commission can engage in innovative research and adopt a multi-disciplinary approach to law reform, engaging experts in law, social sciences and humanities to study these issues on a macro level.” We were frankly surprised to hear some ministers suggest that CBA could fill this role, and now the parliamentary secretary is saying that.
Of course, as the minister said, they coordinate all sorts of groups in coming up with these reports, and I don't think the minister answered the question from Mr. Murphy on whether it hurt our international position. I can tell you that , an international expert, was told twice on trips around the world shortly after these decisions that the international community was shocked.
I guess one of the biggest supports for this committee itself is the fact of what the minister and the parliamentary secretary have just said--of all the good ideas they've given to government and MPs and the research they've done that has helped people, the many reports over the 10 years, only once did government come up with that. The Law Commission had to come up with these ideas. They're there to improve government, and they came up with all those ideas, the current ideas of the day and suggestions of how to go, which is the exact reason you would incorporate people.
My first question requires just a very short answer. We just came from question period where the government was chastised roundly for breaking an election promise on income trusts. Did you tell the electorate at any time during the election campaign that you were going to close the Law Commission?
Great. Thank you, Mr. Chairman.
Mr. Minister, concerning Bill , I suggest to you there have been many comments made, and some in a political forum—the other place. I want to make sure, and Mr. Cotler and all Canadians want to make sure, that you have an opportunity to say here today that you have the utmost respect for the judiciary, which I'm sure as an officer of the court you do.
I'd like to hear you say it, because the questioning is in this line of thinking. There have been comments made in the press and in the other place about Liberal judges. and , as you well know, take away some discretion of judges in certain circumstances, which could be seen as a disdain for judicial discretion. In fact, the whole process with respect to Justice Rothstein's confirmation could be seen as putting judges on public example. Notwithstanding that it was a very positive experience in this instance, it could be seen as putting judges on public display for public approval by elected politicians.
Now we have Bill, and the concern is this. There are provisions in Bill C-17, for many of which the ship has gone by in the public somewhat, and we're on the road to finally getting a settlement of the issue. But there are contained in Bill C-17 issues with respect to...let's call it “the rule of 80”, or the ability of judges to go supernumerary in certain provinces. Supernumerary judges may not be under the same leash or chain from their respective chief justices as are full-fledged justices. This bill, when passed, will result in more supernumerary judges; I know that from the field.
I want to hear from you first of all on this issue of respect for judges. I want to hear from you, if I may be so bold as to ask, what you are going to do to get these supernumeraries to work. Are you going to appoint other judges to fill the backlog of vacancies that exist? Was there any rhetoric from you or your department with respect to getting chief justices to get their supernumerary judges to work to make the system work? You will realize there's a heavy caseload coming down the pike in justice. We will need our judges.
The two-part question, in short, is, do you have respect for judges, and will you resource the field enough so that justice gets done?
Mr. Chairman and honourable members, the Canadian Bar Association is here today to underscore the immense and unique contribution that both the Court Challenges Program and the Law Commission of Canada have made to good governance and the democratic process in Canada. I'm going to take the few minutes allotted to me to elaborate on that theme a little.
The Court Challenges Program's mandate is to ensure access to justice in two particular areas of constitutional rights, language rights and equality rights. The courts have drawn a very clear line between the constitutional principle of access to justice and to the courts and the rule of law. As we all know, the rule of law stands for the very important principle that the law governs our relations and gives us rights and obligations, and also that the government itself is constrained by law, and most particularly that the government is constrained by the supreme law, which is the Constitution. Without access to the courts, these rights remain meaningless, and the Court Challenges Program plays a fundamental role in ensuring access to the courts and access to constitutional rights.
Canadian courts have also long recognized that, in the words of the Supreme Court of Canada, it would be “practically perverse” to expect governments to both enforce and challenge legislation, and as a result our justice system has recognized and accommodated public interest litigation to fill this void, to fill this role, this government obligation that it cannot itself fulfill. The Court Challenges Program has very much facilitated public interest litigation in its mandate areas.
In a constitutional democracy like Canada's, constitutional rights litigation contributes to democratic values and citizenship, and it makes an important contribution to democratic dialogue about rights and their limits. As a society as a whole, we suffer when constitutional wrongs go unchecked.
To be meaningful, rights have to be exercised, and yet without assistance from the Court Challenges Program many individuals and groups cannot access the courts. The amounts funded by the Court Challenges Program are but a fraction of the full cost of a constitutional test case. Individuals and groups also contribute to these cases, and lawyers carry out the legal work on a reduced fee scale, or in many cases on a completely pro bono basis. Despite the fact that the Court Challenges Program is only contributing to a fraction of the costs of the case, that contribution is vital, and without it many of these important rights would remain mere paper guarantees. Without Court Challenges Program funding, many of these cases would never be launched, and the constitutional violations would continue unchecked.
The Court Challenges Program has been spectacularly successful, especially in the area of language rights. For almost 30 years now, the Court Challenges Program has funded cases in this area. As a result, we have a rich and vibrant jurisprudence that has meant meaningful rights for francophone communities outside of Quebec and for the anglophone community within Quebec. Even though there has been a lot of work, and very successfully done, there is yet a lot of work to be done. It is still very early days. We have to understand that human rights evolve over time and that this is an ongoing and continuing process.
The Court Challenges Program has also done a superb job in funding equality rights test cases. Of course, this has been for a much shorter period of time, and there's even more work to be done in that area.
I'm going to turn now to the Law Commission of Canada. The Law Commission of Canada has also played a huge role in improving the administration of justice and furthering the rule of law in Canada through its mandate, which is the renewal of law to ensure that it's relevant, responsive, effective, equally accessible to all, and just.
The CBA has long been supportive of a federal Law Commission. In fact, we've been on the record in support of such an institution since 1966. It is very much a part of modern government. It's a bit ironic that the Canadian government has cut the Law Commission while it's at the same time proposing and supporting such developments abroad in countries such as Bangladesh that are under much more serious economic conditions than Canada is.
The Law Commission of Canada has contributed to a democratic dialogue. It works through a very participatory process. It has established partnerships with institutions, including law schools, public policy fora, the CBA, and many other organizations. It promotes open and informed dialogue and citizenship engagement in all of its processes. While it's independent of the partisan process, it is a very important input into government policy and law-making.
I think what's really important and what I don't think was very clear in the earlier discussions that I overheard is that the Law Commission of Canada sets its agenda through consultation and develops its projects based on this public consultation, and through this process, it identifies pressing issues that are not being systematically addressed by others. So by very definition, it's playing a unique role in only dealing with issues that cannot be adequately addressed by other institutions. We should also keep in mind that the Ministry of Justice has a representative on the advisory committee to the Law Commission of Canada, so they too have a voice in the issues that are studied by the Law Commission.
The Law Commission takes a very innovative and multi-disciplinary approach to its research. It's not something that a busy government department can do on a day-to-day basis.
I'd like to mention in particular the indigenous legal traditions project, which is really just in its formative stages--or at least the first stage of that research was finished--but the Law Commission had important plans to consult and further that work, and that's really being cut off at a very unfortunate time. It's a project that would help to cultivate and refine aboriginal legal traditions in Canada and would help to address the very difficult situation that these communities face and would help to build and help rebuild the relationship between aboriginals and non-aboriginals within Canada.
I think what's important to realize is that even if there are no specific legislative changes that come out of this project, there will be a contribution to the way the country operates, and that law reform is much broader than just passing a bill or commenting on a bill; that law influences culture and influences institutions outside of that process.
We understand that the Minister of Justice and other members of the government have said that the CBA can carry on the Law Commission's work. This is simply wrong. This is not work that the CBA has the capacity to do. The CBA participates in law reform processes and contributes the perspective of the legal profession on law, the administration, and support of the rule of law, but we are not a research institution. It's completely unrealistic to think we could fill the void left by the elimination of the Law Commission of Canada. We are an organization with a different mandate. We have no funds for this task, and it's only through voluntary efforts that the CBA members, who are busy lawyers with full-time practices, do the important law reform work that they already do. You cannot ask us to do more. There is a big difference between commenting on a bill and carrying out substantive, long-term law reform work.
In our view, the Department of Justice is also obviously engaged in law reform, but it does not have the capacity to carry out the same type of work as the Law Commission of Canada does. In fact, I was working for the Canadian Bar Association full-time in 1992 when the Law Reform Commission was cut and for the five years before the new Law Commission was started. We worked very closely with the Department of Justice to try to fill the void, and we all agreed that it just could not be done by either of our institutions or working together.
The Law Commission of Canada has a unique role that's not filled by any other organization, whether publicly or privately funded. In particular, there's no independent organization that's accessible, permanent, and has the comprehensiveness to carry out the work that the Law Commission does.
In closing, the CBA would like to point out that the abolition of both the Court Challenges Program and the Law Commission will impoverish the quality of governance in Canada. All Canadians are impoverished by the short-term thinking that has led to the abrupt elimination of these two institutions, but it is the members of disadvantaged groups and minority groups that will feel the cuts the hardest. The abolition of these two programs serves to reinforce the marginalization and precariousness of the positions of the francophone community outside of Quebec, the anglophone community within Quebec, aboriginal persons, women, persons with disabilities, racial minorities, and other vulnerable groups protected by the Constitution.
The CBA urges you to take all steps available to you as individuals and as a committee responsible for justice and human rights to redress a terrible wrong that has been done.
My name is Ken Norman. I'm the treasurer of the Court Challenges Program. I sit on the board of directors of the program as the representative of the Council of Canadian Law Deans. I have with me our executive director, Noël Badiou.
Mr. Chair, honourable members, I want to talk first from our brief that's filed with you as to the purpose of the Court Challenges Program. The purpose is access to justice, and the rationale for our fund lies in the fact that access to justice requires resources. For sound civil society reasons, there are a number of government funding programs founded on this same rationale with regard to litigation. The Court Challenges Program is but one--or was but one--of such programs.
A year ago, the Canadian delegation appeared before the UN Human Rights Committee during the review of Canada's fifth report on the International Covenant on Civil and Political Rights. Focusing only on charter court challenges and leaving to one side such litigation funding programs as the test case funding program of Indian and Northern Affairs Canada, or the aboriginal rights Court Challenges Program of the Northwest Territories, the Canadian delegation explained the various circumstances in which charter issues may arise during government-funded litigation.
It offered examples such as criminal legal aid, civil litigation involving government or quasi-governmental actors, and individuals engaged in litigation with governmental actors over rights and access issues. The Canadian report proceeds to note that “the Department of Canadian Heritage also funds the Court Challenges Program (CCP), which provides financial assistance for test cases of national significance in order to clarify the rights of the official language minority communities and the equality rights of disadvantaged groups.” In this light, what sense, I ask you, can be made of Treasury Board president comment justifying the funding chop to our program on September 25 of this year, that “I just don't think it made sense for the government to subsidize lawyers to challenge the government's own laws in court.”?
I come before you to ask that this singling out of the Court Challenges Program be reversed. In the name of access to justice, we ask that you call for the restoration of funding to the Court Challenges Program.
I'll now speak briefly to our history and our accomplishments.
The program was established in 1978, following important language rights cases that were pursued in the courts by individuals at great financial cost and personal expense. In view of the fundamental importance of the rights in question, it was recognized that there was a need for a program that would assist individuals from the official minority language groups in bringing forward cases to clarify their constitutional language rights. It was understood that there needed to be a mechanism through which those groups could have their rights recognized. Without such a mechanism, members of those groups would have little or no voice in seeing their rights recognized and respected.
Then in 1982, with the charter coming into effect, the mandate of the program was extended to include language rights under the charter. Then in 1985, with the equality provisions clicking into effect, the program's mandate was further expanded.
In sum, the program was meant to provide access to justice for Canada's historically disadvantaged; those who are most vulnerable to marginalization and exclusion from full participation in Canadian society; and Canada's official minority language groups, who are also trying to claim their full and proper place in Canada. Without this access to justice, these disempowered groups and individuals will no longer have a voice in their efforts to seek equality and recognition. Thus, there's no weight to the argument that the Court Challenges Program somehow failed in its mandate when it did not grant funding to those status quo groups seeking to intervene in support of a government's position.
I want to move to value and effectiveness, as this issue has been raised. In cutting the Court Challenges Program, the government said it did not provide “value for money”. We would be very interested to know on what basis this assertion was made. The program was never notified that it was undergoing a review. Neither staff nor board members were contacted or asked for any information about the program, so what was the nature of the review? What were its findings? Upon announcing the cut, the government did not tie its decision to any supposed findings of any such review.
There have been two formal public reviews of the program, one in 1997 and one in 2003. I will move to a couple of the points made in the 2003 evaluation, the more recent one.
The evaluation said the program is effectively managed. It also said: “The evaluation findings suggest that there are dimensions of the constitutional provisions covered by the Program that still require clarification and that, most probably, there will continue to be dimensions of the constitutional provisions that require clarification indefinitely.”
There are some additional points I'd ask the honourable members to consider. Our program is a small one, but it is national in scope. It is wholly administered by a small staff of eight people from a single office in Winnipeg, Manitoba. The administrative budget is relatively small when considering the importance of the issues funded and the national scope of the program.
Under the limitations established by the Court Challenges Program in administering funds, the real costs of taking a case forward are not even fully covered by any means. There is limited funding that, once granted, allows applicants to leverage the participation of very skilled and experienced lawyers who agree to work at a much lower hourly rate than their norm for some of the work and on a pro bono basis for other portions of their work.
On the impact of the program, our brief sets out some of the important cases. There is one in particular I want to highlight in the brief time I have available, and that's a case out of Prince Edward Island, a minority language rights case called Arsenault-Cameron v. Prince Edward Island, in which the Supreme Court of Canada makes the point and the link between the language funding side and the equality funding side of the program, that link being substantive equality. I quote from Arsenault-Cameron: “Section 23 is premised on the fact that substantive equality requires that official language minorities be treated differently, if necessary, according to their particular circumstances and needs, in order to provide them with a standard of education equivalent to that of the official language majority.” This idea of accommodation is at the heart of the idea of equality in section 15 as well.
In terms of the section 15 cases, contrary to the perception of some, equality challenges have rarely produced clear wins at the hands of the legal system. Funding from the program provides equality-seekers with an opportunity to keep their issues before the courts in the hope that over time the legal principles that they advance will be recognized by the courts. Furthermore, the issues brought before the courts can help to raise the profile of certain issues which can stimulate public debate and lead to legislative reform that advances human rights. The program provides the least powerful in society--disadvantaged groups--with a means to continue the dialogue, which they otherwise would not have.
Let me move to a final point, which is that the Court Challenges Program has been recognized and praised not just by the UN Human Rights Committee under the International Covenant on Civil and Political Rights, which I began my presentation by referring to, but also by the United Nations Committee on Economic, Social and Cultural Rights. As well, the former United Nations High Commissioner for Human Rights, Ms. Mary Robinson, has commented on the wonderful work of the Court Challenges Program and the uniqueness of it, and has stated that this type of program should be replicated in other countries.
Finally, we've had the charter in existence for about a generation. However, constitutional rights continue to evolve. One only has to look to the United States, where constitutional rights continue to be raised in the courts 200 years after their Bill of Rights was entrenched. Surely there's a continued need for our program, which provides some of the resources for disadvantaged Canadians to have access to justice.
Thank you very much for inviting me here. I'm representing the Centre for Cultural Renewal, which has been going in Canada now for about 15 years. It's an independent think tank and involves a wide variety of people with a small staff. We do a lot of work in the area of pluralism, trying to determine what principles can be used to further the common life of Canadians.
My comments focus today primarily on constitutional development by litigation assistance. But my final recommendation for necessary changes will apply as well to the Law Commission questions before the standing committee, which I don't address in my substantive remarks. You'll all get a copy of my full remarks; because of the time restrictions now, I'm just going to touch on some of the key parts.
Constitutional litigation is in everyone's interest. No one group owns the Constitution, and no one set of aspirations controls how the Constitution will change and develop as it is interpreted over time. In an open society, the capacity for self-evaluation and criticism is a good thing. In that respect, having a system that permits evaluation of laws against the Constitution is to a certain extent healthy. Similarly, providing financial assistance to those who cannot afford litigation, if done fairly and appropriately, can also, with some important caveats, be a good thing.
I am not concerned today either to praise the Court Challenges Program as it was or to bury it; I am simply asking for your ears so that we can analyze some of the principles that might vivify constitutional assistance litigation going forward. I think very serious changes need to be made to the program as it's currently constructed.
The Court Challenges Program has had advisers of the highest ability and strategists of considerable brilliance. Its track record speaks for itself. Perhaps we now have, however, an opportunity to rethink what sorts of programs will serve the country best going forward. Programs will come and programs will go. What is buried as a dead duck at one point can sometimes rather quickly show the characteristics of a phoenix.
The effects of the program cuts lead to considerations well beyond the footprint of the previous program, in my submission. Those who wish continuance of the program as it is form one of the most powerful lobbies in Canada today, so I'd like to offer some principles that, it seems to me, ought to concern us all and be applied to considerations should such a program of financial assistance for constitutional litigation be reformulated or developed and moved on from where it currently sits, which is one of my strongest recommendations today.
Why should we be concerned about government-supported constitutional litigation and careful how such support is set up and who will decide applications before a program? It's often said in Canada that the relationship between the courts and the legislature is a dialogue. If that is true, then it is also true that in a further sense the debates within cases themselves are part of that dialogue. There is a dialogue and a debate about the nature of the Constitution carried on within each case, in a sense, and then between cases over time.
Society itself and the law that is part of it are dialogical. It does change over time, in part because of the debates and discussions and self-understandings that are part and parcel of our common lives together. Thus, in cases on any particular theme, as strategists well know, there are developments, and a good strategist chooses cases carefully with a view to obtaining the desired outcomes over time.
Because the result affects everyone, it's essential that the greatest access possible be given to citizens. Interpretation of the charter now, over two decades of it, has accomplished a great deal. Interpretation is an ongoing reality, and we're frequently told our Constitution is a living tree. It's useful to recall that trees are not usually found alone. They are not the only growing things, and second, they are dependent upon the soil that will nurture them. The garden too, in which that tree is a constitutional development stance, is a living reality; threaten the soil and you threaten the tree itself. Constitutional documents are words on paper unless the lived reality of the community breathes life into them in its day-to-day being.
Canada is not the Charter of Rights and the Charter of Rights is not Canada. This needs saying, because there are those—in fact, quite a few—who seem to speak as if Canada will be developed further and be based on the charter, which is shorthand for saying by the judiciary, or within the dialogue between legislature and courts. We must remember that there are other equally important dialogues at work, as I said a moment ago, and one of those is the dialogue within cases themselves, the very debate of principles that is located within each piece of litigation.
I want to move at this point to highlight what I think is the essence of my submission.
If we assume that courts are not merely necessary but are sufficient for the maintenance of a constitution over time, we assume too much about the role of law. That is the central point of my comments today. For any program of constitutional litigation assistance to be just, it must be open to everyone--not only to those challenging laws, but also to those defending them as well, or arguing against a particular sort of challenge. For example, there may be no law in an area in which a litigant may seek to have one, as was the case in the same-sex marriage cases, which hung up on the tenuous thread of the challenge to a common-law definition.
If constitutional litigation is going to affect everyone, then those who may need assistance in relation to that litigation do not come all neatly labelled as challengers, and therefore any program seeking to develop constitutional interpretation must do so on a neutral basis and not assist only one side of the argument. What is constitutional is not just what is new and challenging; it can also be what the Parliament and legislatures, federal and provincial, may have brought into place already.
As Canadian philosopher Charles Taylor has noted, judicial decisions are usually winner-take-all. Either you win or you lose. In particular, judicial decisions about rights tend to be conceived as all-or-nothing matters. The penchant to settle things judicially, further polarized by rival special interest campaigns, effectively cuts down the possibilities of compromise. When litigation is being used this way, however, because we are encouraging it to be used this way, it would make sense to ask what kind of equality is being pursued. What are we saying about that internal dialogue on issues of the day that should exist between citizens? To go to the courts on what amounts to this winner-take-all model that Charles Taylor expresses concerns about effectively tends to give one side of what can often be a two-sided discussion a victory, and that is not the way to produce a civil society that is functioning at its best over time.
My paper develops this theme in far greater detail than I can right now, but I'd like to turn to the question. It is this: how are we best to do this task of placing the charter in the proper linguistic, philosophical, historical, and religious tradition that the Supreme Court of Canada has told us it should be placed in if we do not do it with maximal inputs from the people and groups who can best tell us what these are? In one of the recommendations below, I argue that litigation is not the best way to accomplish the kinds of reflection best suited to the best kind of judicial decision, and that another approach needs to develop.
Constitutional rights are important, and the courts have a necessary role in defending them, particularly when the state is acting against individuals or groups, but it is a necessary role the courts have, not a sufficient one. The first period of work under the court challenge program and the first period of development under the Charter of Rights and Freedoms has shown us the development of jurisprudence, particularly in relation to equality rights, language rights, and so on; I'm going to suggest that the next period of development in Canada needs to look beyond a litigation framework for constitutional analysis. We need to start getting out of a new sectarianism of debates, largely political, between interest groups. I think we need to do that by making substantive measures that will bring into the same room the groups that have fundamental disagreement, because at the end of the day we as citizens live with radically opposed viewpoints and co-existent lives in the same country.
Therefore, here are my recommendations.
First, assistance should seek to best elucidate the merits of both challenges and defences to laws, since constitutional merit does not belong only to challengers.
Second, all citizen groups must have confidence in the fairness of any constitutional assistance program that's set up, particularly with regard to representative fairness. As far as practicable, it would make sense to involve those from a variety of different groups themselves, and we know from the history of litigation in this country over the past many years who those groups are. They should be the members of the board of advisers, or the members making decisions in a project like the Court Challenges Program--not just a selective group of law professors and certain activist groups, however excellent they may be.
Three, once the courts have granted intervenor status to groups in a constitutional litigation, funding assistance to a certain level should flow to all sides of that litigation, subject perhaps only to a means test principle. This flows from my first proposition, that constitutional development isn't just for the new. The judges, after all, determine that particular bodies have an interest and valid representative status in constitutional litigation. It should, therefore, follow that recourse to financial assistance is possible for not-for-profit groups, for registered charities, and for individuals who satisfy the means test.
Four, there is a need to clarify the role of litigation, participation, education, and advocacy in relation to charitable status. The Court Challenges Program itself brought a challenge to the Supreme Court of Canada, unsuccessfully, for a west coast women's advocacy group. I know of many other groups that share concerns about the deregistration, or the lack of registration, given to certain charities. There needs to be attention to that.
Five, and I think most significantly, I'm arguing that instead of focusing governmental moneys, federally or provincially, primarily on court challenges for some, we should consider establishing in Canada a constitutional forum for stakeholders that will benefit all Canadians. This constitutional forum would involve groups that are here today—for example, the CBA—representatives of law schools, representatives of religious organizations, labour organizations, aboriginal rights groups, women's groups, and linguistic rights associations, as well as representatives of sexual orientation activist groups, etc.
Only with a constitutional forum of this kind, which involves the actual groups that have the interest, can we see the kind of principled analysis developing that we need in Canada. My brief spells out how we failed that need miserably with respect to same-sex marriage, how we could have done much better, but that recourse to the method that was chosen in the courts and then with the marriage reference truncated what I hope will eventually be a proper analysis of the role of the state in relation to same-sex marriage.
There's a lot in my submission. I've gone slightly over time, and I apologize to my colleagues here, but those are my comments.
As you know, this is a fairly difficult and sad time for human rights because we're dealing with a quite heartless government that is not that concerned by these issues. It is a government that has resolutely chosen to sit on the right, and, like all right-wing governments, it does not believe in equal opportunity. That's the difference between the existence of a court challenges program and its non-existence. I'm saying that we won't yield. The minister can represent the Francophones in his riding all he wants, but he didn't want to answer my questions today. We're going to introduce motions.
You're familiar with the democratic adage that governments are sometimes blind but never deaf. We have to raise the volume. In all regions of Canada, I hope there's a caravan of personalities—I'm going to talk to my caucus about this—that travels through the Francophone communities to let them know how dangerous this government is for those who believe in equal opportunity for Francophones.
I never understood the Court Challenges Programs as such was a program that provided 100% funding for leave to go to court. That's obvious. You have contribution agreements and you receive $2.8 million a year. I read in your contribution agreements that you have to reserve $1.8 million for challenges; the rest is to cover expenses. You don't have a big budget; that's clear. The principle is this: what we accept because we're democrats is not challenges against laws; it's defining what laws are. The idea is to define the extent of a right. It isn't because a law was defined in a particular manner in 1996 that it won't be expanded and defined in another way in 2001, 2002 or 2003.
I'm not talking about section 15, but let's just take the idea of the entire issue of the manaagement of school boards, which we call school commissions in Quebec. How could anyone think that, without the Court Challenges Program, there would have been major advances like those we witnessed a few years ago. So point that out to this government, and I hope that the ministerial types switch to listening mode and that we have a minimum amount of awareness so that they can again realize that the vitality of our communities is at stake. I know we're not talking about their survival, but rather about the vitality of our communities.
Once again, there is a price to be paid by a right-wing government. When things go well, when we can afford to go to court, when we have no reversals of fortune in life, we don't need the government. When you're in the majority and you live in Alberta, Saskatchewan or Manitoba, when you're Anglo-Saxon and speak the language of the majority, you don't need the courts. The program isn't for that.
I apologize on behalf of the government for having one like that. May it please God and voters that, next time, this government is dispatched as it deserves. However, tell us how important for schools management the rights that you defend and the Court Challenges Program are.