Mr. Chair, ladies and gentlemen members of the committee, the Canadian Bar Association appreciates this opportunity to comment on the Court Challenges Program, which is closely related to our mission.
The Canadian Bar Association is a national association representing 36,000 jurists across Canada. Among the association's primary objectives are to improve the law and the administration of justice. It is in that context that we wrote to you. The committee has in its possession the letter we sent it about the program.
The court challenges program is as important today as it was when it started, if not more important. By giving vulnerable individuals and groups the tools they need to exercise their basic rights, the program makes these rights real and not just words on a paper.
In renewing the program, it's critical the government reinstate the elements that best support this aim. In our view there are four.
The first is administration of the program by an organization that's independent from government.
The second is to continue, at its core, support for historically disadvantaged groups and official language minorities to enforce their equality and language rights under the Constitution through the courts.
The third important element of a reinstated program is to only fund those cases that have a systemic impact and that promise to improve conditions more broadly for the individuals and groups these rights are intended to protect.
Finally, it's extremely important the program continue to provide for meaningful and informed input into the development of the cases by the communities that will be most affected. This is done through support for consultation, as well as support for access to the program, and spreading information about the program and the rights it protects.
We've provided further detail on these important elements of a reinstated program, and we would invite you to review our submission.
With that said, the other major point we wanted to make today in the time we have respects this question of expanding the mandate of the program. We understand that is under consideration. We considered this question in light of the commitment by the government to reinstate the program in terms of equality and language rights, and to modernize it. It was in the spirit of understanding the framework that we considered what might be potential expansions to the mandate that would support that underlying rationale.
Our first recommendation, and the CBA has long made this recommendation, would be to extend equality rights funding to support cases that challenge provincial or territorial law or policy. These cases can be important precedents in their own right, with broad impact, and that has long been a limit that many have critiqued the program for.
Secondly, we advocate expanding the mandate to include complaints under the Official Languages Act, and it's for similar reasons we recommend that.
We also recommend, and this is our third potential addition to the mandate, that the program be flexible enough to support the entirety of a case that may raise or be based on other charter rights in intersection with equality rights. This is increasingly becoming common. A recent example is the Carter case, where not only section 15 but other charter rights were raised. I think it's evidence of the complexity of the issues that can raise equality issues in Canada today.
A fourth potential addition to the mandate would be to support systemic complaints against government under the Canadian Human Rights Act. This would be complaints before the Canadian Human Rights Commission. We have recently seen a case, the first nations child caring society complaint, that was an equality test case. They need support at the early stages. We would advocate that you consider extending the program to provide that support.
Finally, with respect to mandate expansion, we would urge this committee to strongly consider recommending that funding be provided to support test cases raising aboriginal rights, treaty rights, and the responsibilities of the federal government to indigenous peoples. We recognize that this would likely entail additional funding, an additional budgetary commitment to what is currently being committed, and that it would need to start with consultation with indigenous communities. However, we think this is an important addition that needs to be made.
That's all we will say on the issue of mandate expansion. Again, we would invite you to read our brief.
In closing, we would say that the objectives of the program are as important today as they were in 2006 and in 1986. Canadians still need the court challenges program to make equality rights and language rights real for the people those rights are intended to protect.
We really appreciate this opportunity to share the best advice that our members have for this committee and wish you the best in the important work that you have to do.
Thank you very much for the opportunity to discuss with you my experience and my recommendations regarding federal government funding for charter litigation challenging federal law, and based upon what my colleague has just said, maybe more than just federal law.
There are three reasons for my opinion that such a funding program would be ill advised. First is the issue of bias. The application process and the decision-makers under the original court challenges program were biased.
I had personal experience with the program, and for reasons of solicitor-client privilege I cannot go into the details. However, I can just tell you what I saw as I made application for funding on several occasions.
The bureaucrats took the position with respect to my arguments that the arguments were not going to be funded because, in their view, they did not have a reasonable chance of success. When I asked them, “How did you form that opinion?”, they said, “We contacted a law school dean or a law school professor, and it was their opinion that they didn't like your argument.” On the basis of a prejudgement of the arguments that I was going to present, the funding was never provided to any of my clients as we participated in the charter challenges program in the first iteration of that particular process.
In my view, the test should not be reasonable chance of success and law professors should not be the gatekeepers. If reasonable chance of success were the test, then Carter would never have been funded if it had come to the court challenges program for funding, because, of course, Carter was challenging a direct precedent against the position that Joe Arvay was arguing, and that was the Rodriguez case.
In my opinion, the previous court challenges program was almost unconstitutional because it was administered in a manner that was not consistent with the rule of law. Money was distributed on the basis of the opinions of individuals and not principles of law equally applied to all applicants for funding.
I have a second reason to oppose going into another court challenges program funded by Parliament, and that is Parliament's responsibility to get the law right in the first place. Public resources should be expended in Parliament and not the courts to ensure that all laws are charter compliant.
It may have been desirable 30 years ago to test old laws, but after three decades that argument no longer seems reasonable. Today, the work of the Attorney General, cabinet, the House of Commons and Senate committees, and three readings in each House, should give adequate opportunity to scrutinize the law and ensure that it is charter compliant. Funding for a charter lawsuit after this process is in a sense hypocritical and wasteful. It would be more prudent to measure twice before cutting once.
Furthermore, to fund charter lawsuits is to imply that Parliament is somehow subservient to the courts. Parliament should not assume that its opinions are any less important or valid than those of the court on the subject of charter compliance. Parliament would show a lack of confidence in its own judgment if it were to fund lawyers to challenge the hard work of parliamentary committees just like this committee here today.
Finally, the challenges program is redundant. In those rare occasions when a charter challenge is justified and is important to the public, the Supreme Court of Canada has shown the willingness to order public funding. That is what the Supreme Court of Canada said in Carter about cases that should receive public funding. I won't take the time to read the quote for you, but if you were to go to the Supreme Court of Canada decision 2015, at paragraph 140, you find the test that the Supreme Court has set for funding public interest litigation like Carter.
In light of this new practice in the Supreme Court of Canada, a renewed court challenges program is redundant. If Parliament nevertheless determines that it is in the public interest to fund charter litigation, I recommend that the law prohibit bias and require compliance with the rule of law. This means that a new program should include the following 10 rules, at the very least.
One, the opinions of bureaucrats, politicians, academics, former judges, and others should not be a factor in allocating funding. Two, the only rules that should be applied are those that are based on law. Three, no funding should be provided to re-litigate a question decided by the Supreme Court of Canada since adoption of the charter. Four, no funding should be provided where a litigant does not have facts that disclose a cause of action. Five, no funding should be provided where litigation is frivolous and vexatious. Six, no funding should be provided for a colourable or fraudulent purpose. Seven, no funding should be provided to another level of government. Eight, no funding should be provided to a non-resident or non-refugee of Canada. Nine, no funding should be available where the litigation is duplicative of litigation that is already before the courts. Finally, 10, funding should be provided equally on a first-to-apply basis to all otherwise qualified litigation proposals.
Thank you very much for your time this morning.
Mr. Chair and members of the committee, on behalf of the Canadian Civil Liberties Association I want to thank the committee for this invitation to participate in your study on access to the justice system.
The CCLA fights for the civil liberties, human rights, and democratic freedoms of all people across Canada. Founded in 1964, we are an independent, national, non-governmental organization working in the courts, before legislative committees, in the classrooms, and in the streets protecting the rights and freedoms cherished by Canadians and entrenched in our Constitution. CCLA's major objectives include the promotion and legal protection of freedom and personal dignity, and for the past 51 years we have worked to advance these goals.
CCLA has a deep and long-standing commitment to access to justice and views this issue as a major priority that, frankly, Canada has failed to sufficiently address. We appreciate that this study is examining a number of issues, including the newly reinstated court challenges program, access to legal aid, delays in the administration of justice, and section 4.1 of the Department of Justice Act. All of these issues are worthy of study, and we will be submitting a written brief to the committee outlining our position on each of these issues in the coming weeks.
Today, however, I intend to focus my comments on section 4.1 of the Department of Justice Act, and more specifically, I would like to address the committee on steps that can and, in our view, must be taken to address critical accountability and transparency gaps in our law-making process.
As you all know, section 4.1 of the Department of Justice Act requires the Minister of Justice to examine every bill introduced in or presented to the House of Commons by the government and report to the House if any of the provisions of the bill are inconsistent with the Canadian Charter of Rights and Freedoms.
You will also probably be aware that currently this provision is interpreted in a way that does not require a report to Parliament unless the minister is of the view that there is no credible argument that can be made for the consistency of the legislation with the rights guarantees. As a result of this standard, not a single report to Parliament has ever been made, yet, as we all know, many government laws have been struck down by our courts or are the subject of fierce constitutional concerns by legal experts.
In our view the current approach and standard are woefully inadequate.
CCLA has been concerned for some time about the interpretation and effect of section 4.1. We were the only intervenor in the federal court case brought by former Department of Justice lawyer Edgar Schmidt, who challenged the current interpretation of the section. The Schmidt case highlighted some of the weaknesses in our legislative process.
Our current system, in our view, does not ensure that you, as members of Parliament, those elected by the people and charged with passing our laws, are in a position to fully appreciate your constitutional obligations or how legislation may impact protected rights.
CCLA's work on this issue has extended well beyond the intervention in the Schmidt case. In late 2015, CCLA launched our #CharterFirst campaign, and since that time we've been engaged in consultations with some of Canada's leading constitutional law scholars and political scientists to consider how our legislative process can be improved. The goal of these consultations and of the project more broadly is to ensure systematic, meaningful, and transparent consideration of a proposed law's constitutional vulnerabilities. In other words, we want there to be a real and substantive discussion of which rights may be affected by a proposed law and whether any infringement or violation of rights is reasonably justified.
Nearly a thousand Canadians have already joined our campaign, so there's clearly an appetite for change among the Canadian public.
I'm going to talk about identifying the problem and developing solutions. In terms of the problem, the simple fact is that the current approach under section 4.1 of the Department of Justice Act is not working. In our view, every elected representative has an obligation to respect and uphold the Constitution; however, we appreciate that members of Parliament will not always have the information they might need to assess the impact of legislation on constitutional rights. While the government benefits from a large team of legal advisers in the Department of Justice, the legal resources that members can access are often quite limited.
The current interpretation of section 4.1 may actually have a perverse effect. When no report is made by the Minister of Justice, the government may take the position that there are effectively no constitutional concerns for Parliament to worry about. This is not only misleading, it impoverishes the level of debate and discussion on a bill.
I can't articulate the problem any better than has been done by Professor Janet Hiebert, a political scientist who's written extensively on this subject. She says:
|| In Canada, the practice of non-reporting to the House of Commons that Bills are inconsistent with the Charter occurs because the Minister of Justice has concluded that a credible Charter argument can be made in support of the claim that the Bill is reasonable. But this denies Parliament the information or assumptions that led to this conclusion. The absence of any explanation also denies Parliament relevant information for assessing whether or not the government has been overly risk-averse or cautious in its legislative decisions. Parliament should not be placed in the untenable position of having to either pass legislation that may have a high degree of risk of subsequently being declared invalid or, alternatively, having insufficient information to assess decisions that avoid ambitious objectives or comprehensive means because of governmental and bureaucratic attempts to manage or avoid Charter risks.
The consequences that flow from the current approach are not confined to what happens in Parliament. After a law is passed, avoidable constitutional challenges often follow and these challenges cost taxpayers dearly. They consume precious judicial resources which could be better spent on other things. Laws that are passed, even though they may violate constitutional rights, can have a direct and very negative effect on people's lives.
To take but one example, the last government passed legislation that changed the timing of parole eligibility for certain offenders and made that change retroactive. Every court that considered this law, including the Supreme Court of Canada, found it to be unconstitutional. While that case made its way through the courts, the applicants in the case, and many others no doubt, spent additional time in jail, in one case an additional close to two years. If we can prevent an unreasonable and unconstitutional loss of liberty by improving our legislative process, it is in our view incumbent on us to do so.
In terms of our solutions, as part of our #CharterFirst campaign, CCLA will be delivering detailed policy proposals on how we believe this issue can best be addressed. Our proposals will aim to enhance the roles of both the legislative and executive branches of government to better ensure that the laws we pass comply with constitutional obligations.
To be clear, the goal is not to ensure that there are no more constitutional challenges or even to reach a consensus on what the Constitution requires. Rather, we want to enrich the debate, make the government's rationale in proposing laws more transparent, and provide members of Parliament with the tools to hold government accountable and make informed decisions about legislation. Our proposals are being developed as we speak, but are based on our consultations with the experts that I mentioned earlier.
We understand the has recently announced an intention to table in Parliament the government's charter justification underlying Bill , the assisted dying bill. We are anxious to see what this statement looks like and hope that it will allow for enhanced debate and discussion on this important and contentious bill.
The minister's decision to do this is a good step forward, but in our view these kinds of discussions can't be contingent on a decision by the minister introducing a bill. We need systematic and proactive measures in place, codified in legislation, to ensure that every bill that's ultimately passed by Parliament, including private members' bills and bills originating in the Senate, has received the time and space for truly informed debate on constitutional vulnerabilities.
We look forward to working with the committee on this issue going forward and certainly welcome any input that you may have on this important project.
Thank you for the question.
As I said, there's much that the Canadian Bar Association said that I agree with, and with respect, much that Mr. Chipeur said with which we disagree. The view certainly is that the court challenges program needs to be reinstated. We support expanding the mandate to address challenges to both provincial and territorial laws. Certainly, a focus on equality is not misplaced, but we need to understand equality in a broader sense. We agree that trying to fit a case within the confines of section 15, on all corners, may not be the best approach. Many equality cases have elements of section 7, the life, liberty, and security of the person protection.
In terms of the rights of incarcerated people, this is a very significant concern that we have. They represent a population for whom it's very difficult to access the justice system. Some of those challenges might come under other provisions of the charter, so we're certainly in favour of that kind of expansion.
The other thing I would like to respond to is the question that Mr. Rankin asked about, advance costs. It is important to appreciate the amount of work that would need to go into a case before even bringing a motion for advance costs. I think it's one of the reasons why setting a bar like that might be very problematic. For both the client and the counsel involved in that case, there would have to be a great deal of resources that go into it before the case would be ready for that. I should say that, despite the fact that there have been some good decisions on advance costs, and some good decisions after the fact where costs are not ordered in public interest cases, it's a significant risk for the client and the lawyer taking on that case. You often don't know it's going to happen until it's all said and done, which might be years later.
Good morning. Thank you very much for the opportunity to present before this panel.
This submission has been prepared for the purpose of communicating the African Canadian Legal Clinic's interest in supporting the Government of Canada's decision to reinstate and update the court challenges program.
The ACLC is active in the area of constitutional equality and strongly supports the reintroduction and modernization of the court challenges program as a critical means to enhance access to justice for the African Canadian and other racialized communities. Access to justice is a critically important value to African Canadians as a historically marginalized community.
Along with indigenous peoples and European settlers from France and England, African descendants are a founding people of Canada. African descendants have always had a meaningful presence in Canada, from the early 15th century up to Confederation and into the present.
After 206 years of legalized enslavement of Africans in what is now Canada, slavery was abolished, and African Canadians had to contend with slavery's afterlife by being forced to face legal and de facto segregation in housing, schooling, and employment, and exclusion from public places such as theatres and restaurants. These racist practices were reinforced by a justice system that often served to keep African Canadians in their place.
The black experience continues to be one of extreme marginalization and disadvantage: restricted access to housing; discriminatory victimization by education and child welfare systems; social criminalization; high levels of unemployment; disproportionate and alarming rates of poverty; and near total exclusion and chronic devaluing of African Canadians in all areas of Canadian social, economic, political, and cultural life.
After 12 years of the Harper government, we have only seen these conditions worsen for blacks in Canada, as publicly funded support for precedent-setting challenges of laws, policies, and practices that facilitate and deepen black marginalization almost entirely evaporated.
Reinstating and modernizing the court challenges program will serve to enable long-standing inequities facing the African Canadian community to be more fairly, effectively, and correctively addressed through the Canadian court system. This is particularly true when considering that a disproportionately high number of African Canadians live on the margins of social and economic inclusion, are impoverished, precariously housed, and dramatically overrepresented in all levels of the criminal justice system, including provincial and federal prisons.
To address these conditions, it is critical that a modernized CCP not be embedded with procedural hurdles to obtain access to the resources it can avail. In other words, where there are cases, for instance, where one or more individuals from a historically disadvantaged group is facing a significant limitation or loss to their life, liberty, or security of the person, partly in connection with their charter-protected identity, unduly onerous procedural and eligibility requirements should not bar access to support from the CCP.
The following are also considerations that the Government of Canada should take very seriously as it undertakes to reinstate the court challenges program.
First, access to justice must include providing resources to support the enforcement of charter-focused remedies and decisions of our courts. For instance, racial profiling and illegal searches of individuals continue to take place at alarming rates, despite the existence of jurisprudence that forbids the continuation of these practices.
Gathering sufficient Canadian-based and focused social science evidence to support equality rights challenges is an extremely costly exercise. Undertaking community consultations and hiring expert witnesses to produce reports and provide testimony on pressing issues like anti-black racism comes at a prohibitive cost to the overwhelming majority of black African Canadian individuals and organizations.
It is critical that the court challenges program be an arm's-length institution from the Government of Canada. It should be a stand-alone, not-for-profit organization, as it was in its previous iteration. This will allow for greater independence and garner considerable trust and confidence in the CCP as a resource to turn to for support for charter-based court challenges.
Further to the point of accessibility of the CCP, the ACLC feels strongly that the program should not be housed in an academic institution. While much important work is done within academia, the general public and especially the collective African Canadian community, which experiences high levels of social and economic exclusion, will not feel that the CCP is a welcoming and receptive institution for them to access if it is housed in a university.
Alternative dispute resolution is an important part of our legal system, but it should not be actively encouraged or supported by the CCP where the matter being challenged is systemic in nature. The reason we take this position is that ADR prevents the establishment of much-needed equality jurisprudence that meaningfully serves to address and uproot systemic discrimination and inequality.
To ensure stability and continuity of the CCP, the Government of Canada should establish an endowment for the program through a legislative framework. This is to ensure that subsequent governments cannot so easily dismantle this vital access to justice program as was done by the Harper government.
The scope of the CCP should be extended beyond federal jurisdiction but should also include matters that have systemic impact across provinces. This, we feel, is instrumental to helping the court challenges program fulfill its potential to address the equality deficit facing African Canadians and far too many other historically disadvantaged groups.
In conclusion, to support our submission's call for the aforementioned enhancement to the court challenges program, I refer to the following Supreme Court of Canada's jurisprudence. In Tranchemontagne the court stated the following, “Human rights remedies must be accessible in order to be effective.”
In another Supreme Court decision, Hryniak, the Supreme Court also stated that, “Ensuring access to justice is the greatest challenge to the rule of law in Canada today.”
Finally, in Fischer, the Supreme Court also recognized the existing barriers when it stated the following:
||The sorts of barriers to access to justice...may relate to either or both of the procedural and substantive aspects of access to justice. The most common barrier is an economic one, which arises when an individual cannot bring forward a claim because of the high cost that litigation would entail in comparison to the modest value of the claim. However, barriers are not limited to economic ones: they can also be psychological or social in nature.
Reading these Supreme Court decisions together, the ACLC argues that access to justice is a fundamental charter value that has not been effectively extended to the African-Canadian community.
Through modernizing the court challenges program in the ways proposed above, the Government of Canada would be making an historic leap forward toward comprehensive recognition and correction of the centuries of systemic anti-black racism that has imperiled the prospects and well-being of far too many African-Canadians in our country.
Thank you very much.
I'm glad to see there's no snow here, but it is a little chillier than Toronto. It's good to be here.
Good morning, Mr. Chair, members of the committee and fellow witnesses. My name is Ziyaad Mia and I'm a member of the Canadian Muslim Lawyers Association. I'm with the legal advocacy committee. I used to run that committee for a number of years and I was also on the board of this organization in the past.
The Canadian Muslim Lawyers Association is pleased to have this opportunity to contribute to the study of access to justice, and in particular, the restoration of the court challenges program.
Our organization is a national organization of more than 300 lawyers now. It started in the late 1990s with a few lawyers in Toronto that began, as any lawyers' group does, as a social networking group trying to find opportunities for business. That grew as 2001 hit with national security legislation coming forward. We got very active on human rights, national security, and civil rights.
For the last 16 years we have been very active in the discourse on human rights, national security, and civil liberties. We've appeared and I myself have appeared many times at parliamentary committees on various issues, most recently last year on Bill .
I believe you have our brief written submission, but I'll take a few moments today to talk about what's in that submission and some of the rationale behind what we're recommending and why we think restoration of the CCP is important for the country and also for ensuring access to justice.
As a starting point for our organization, our fundamental touchstones are the Charter of Rights and Freedoms and the values that it holds. They are the ground for our organization, its values, and the work that we do.
The other piece is the rule of law in Canada. As we know, we see chaos in many parts of the world. I think it goes to those very issues, that there's a lack of rule of law and fundamental values where government can be held accountable. For the CMLA that's very important because it really undergirds the liberal democracy that we have here that functions well, that we can sit here and respectfully debate and hold government to account and improve our legislation.
The third piece for the CMLA is really the dignity of all persons in Canada, and to promote those values in human rights, in national security, and in other ways. Certainly, we will speak when Muslim Canadians and Muslims in Canada are adversely affected by national security law and in terms of discriminatory impact where they practice their faith, those sorts of things. But that is not exclusively our focus. We see that as a subset of the dignity of all persons.
As many of you in the room are lawyers and parliamentarians, you know that the adoption of the charter was a landmark in our nation's history and further ensured that the rule of law and fundamental rights became a part of our legal culture and political tradition.
The core of the charter stands for two things. Number one, it is an entrenching of fundamental values and a public expression of those values and rights to the citizens, to the politicians, to the courts, to the institutions, to everyone in society that these values are important.
The second important piece of a charter or a bill of rights type of mechanism in all societies that have that, and where it functions well, is that it is a check on government. That is what the charter is designed to be, and when government acts it needs to be respectful of those fundamental rights and values. It's subject to scrutiny and justification. That's essentially what the charter does and how it operates. It holds government to account. For citizens, that is an important piece, because without that and the courts...you know, no disrespect, but even well-meaning governments can make mistakes. We do need courts and the rule of law to hold governments to account.
Is the CCP relevant, and is the charter relevant? That would be the bigger question. I think the charter is more relevant today than it was in 1982, for the precise fact that it is a check on government. Because the modern state has grown significantly in those 30-some odd years, I think it is more relevant today than it was when it was introduced.
That's where I come to the charter litigation as an access to justice item. Charter litigation is a key piece of access to justice. You've heard it from other witnesses today and in previous hearings you've held. It's a key piece in holding government to account. Certainly, there is the media and there are other pieces in civil society that hold government to account, but in terms of access to justice and the legal system in our division of powers, this is an important piece.
This is where our concern is. Without the CCP, vulnerable and disadvantaged persons and communities in Canada may not have the resources or the capacity to hold governments to account. Where their rights are infringed or threatened by government action, they may not be able to access the courts, because as we know—many of us are lawyers—it's a costly business to go to court, and it's an increasingly costly business to go to court.
At the end of the day, those disadvantaged people in Canada may then become invisible to the justice system itself, and the court's doors essentially will be closed to them. What's the effect of having that happen to those people? Over time, that lack of access to justice will really distort the contours of charter jurisprudence.
What you're going to have is a society where some people just can't exercise their rights and where those who are well-heeled and can afford to exercise their rights will go to court. You're going to get this lopsided jurisprudence. You're won't be getting a reflection of the real concerns that are out there in society.
That's why we think the CCP is crucially important. It's not the only piece in access to justice—don't get me wrong—but it is an important piece in making that happen. We think it's important to not have a lopsided jurisprudence with respect to the charter, and that's essentially why we support the restoration of the program.
In terms of restoration, we would like to see the restoration of the essential elements of the old program—we don't get into details, but I'd be happy to answer your questions—such as equality rights, for sure, and language minority rights, on which there has been some discussion about whether they're parsed off. We're not wedded to a particular model, but certainly we're interested in having those things preserved, as well as independence from government, for sure.
Also, the Canadian Muslim Lawyers Association is asking for the mandate and scope to be expanded to include section 7 of the charter, not to be a subsidiary right to section 15. I'm being clear. With all due respect to my colleagues from the CBA, I appreciate that perspective and I agree with where she's going with that, but I would like to see section 7 stand alone.
I don't want a disadvantaged community or individual turned away for a section 7 claim where they don't have a neat fit into an enumerated or analogous ground, because that would actually just be a bureaucratic way or an unforeseen circumstance. If our goal is to have disadvantaged people have access to justice and their charter rights, we don't want to tell them to go away because they don't fit into one of those neat boxes.
Let's take the Carter case, for example. We could say that's a disadvantaged class of persons who suffer and who may need to access that right to die, but those people cross every faith community, different economic boundaries, sex, and religion—I mentioned that—so it could cross a lot of the enumerated grounds, and they may technically be knocked out of a charter challenge program.
The other piece, the section 7 substantive “right to life, liberty and security of the person”, holds a lot of promise for litigation. In particular, a lot of people have talked about socio-economic rights. I don't know whether it's in there or not. Courts will decide, but this is the point of having test case litigation, and this is the reason why we need to have charter support for those cases.
We'd like it extended to provincial law and action as well, for the very fact that it is not about jurisdictional battles or politics. This is about the charter, and the charter applies to all government action. It is a check on government. That's the lens we should look at in terms of application.
We would like the program to be independent of government and funding to be sustainable and stable.
Those are my submissions. I look forward to your questions. Thank you.
Good morning, my name is John Rae. I'm second vice-chair of the Council of Canadians with Disabilities. I appear with Anne Levesque, who is chair of our human rights committee.
We appreciate being invited to be here today. Being included in these proceedings is important for our work, and the court challenges program has been very important to the litigation side of our work. That's only part of what we do, however. We are a national organization, a consumer organization, and the primary voice of persons with disabilities at the national level.
You've heard the adage “nothing about us without us”. That's where we come in. We are that voice. We are involved in lobbying for legislation, in trying to improve public attitudes, and in trying to shape government policy. One of the things we do best is bring our community together to help government in its policy development role. Occasionally we get involved in litigation, particularly as intervenors, and we have participated in cases that have gone as far as the Supreme Court.
When we think about the historic division of powers in this country.... It is the same in every human rights commission, every year. The largest percentage of cases that are received fall in the prohibited ground of disability, and generally in the area of employment.
That is why we also support the expansion of the court challenges program to cover government actions at the provincial level. The extent of discrimination, exclusion, and oppression that is the reality of our community continues to be widespread, and we need the opportunity for more systemic responses to this kind of widespread exclusion and discrimination.
Similarly, at a human rights level, we often deal with one person's issue, one case at a time. That's too slow. The charter and human rights legislation, in our view, promised us something different. We've come further up the road in terms of being equal before it under the law, but we're a long way from realizing the charter's promise of equal benefit of Canadian law. This is why the court challenges program is important.
It's one thing to have good law in this country, and I think we have pretty good law. As citizens and organizations, if we do not have the resources to be able to test and try to expand what that law covers, then it's just not achieving what we need. This is where the court challenges program is important, has assisted us, and we look forward to its return.
My name is Anne Levesque. I am the chairperson of the Human Rights Committee of the Council of Canadians with Disabilities. The committee is mainly made up of persons with disabilities. Our committee guides the council's legal intervention strategy.
As my colleague Mr. Rae pointed out, our strategy in this regard is often not to undertake legal proceedings. That is why the council is in favour of restoring the fund created under the Court Challenges Program to support negotiations with government. That being said, we are opposed to binding arbitration.
Today, on behalf of the council, I will address two aspects. First, the funding of human rights litigation. Secondly, the increase in the funding envelope for community consultation created under the previous program.
Let's begin with human rights. The human rights legislation and system in Canada is sometimes the best forum to advocate for the equality of persons with disabilities. The objective of human rights legislation throughout Canada is to eliminate discrimination. By filing human rights complaints, persons with disabilities support and enhance the parliamentary intent and objective to eliminate discrimination. In our opinion, that is a valid objective that should be funded by the government.
In this regard, let me give you the example of a case the council participated in. This case is unfortunately not mentioned in our brief, but it is quite well known. It is the Hughes, James Peter v. Elections Canada case, a case argued before the Canadian Human Rights Tribunal in 2010. This case dealt with polling stations that are not accessible.
As you can see, this was not theoretical. In this case, the person's right to vote, the most fundamental democratic right, was jeopardized for discriminatory reasons. Mr. Hughes filed a complaint with the Canadian Human Right Tribunal. The council was granted interested party status, which is equivalent to intervenor status before the court.
The tribunal granted a range of very interesting, varied and multidisciplinary remedies. These remedies were obtained in consultation with the council. This shows that it is not necessarily just a matter of proceedings between adversarial parties, but that sometimes the council and the complainants work together to bring about better policies.
In this case it was determined that Elections Canada had to consult the council and the population of persons with disabilities so as to make the Canadian electoral system more accessible. In addition, this decision was in keeping with Canada's international obligations to persons with disabilities, which are to ensure that Canada promotes participation, equality rights, dignity and independence. This type of very innovative and progressive remedy might not have been possible in the context of a court case invoking section 15.
Currently, it must be said that the human rights system in Canada is not accessible. In Canada (CHRC) v. Canada (A. G.) the council intervened before the Supreme Court to argue the fact that human rights complainants who win their case should be entitled to compensation for their legal costs. The Supreme Court did not accept that argument. So, a complainant who wins his case and obtains systemic improvements that affect all persons with disabilities will not be compensated for court costs. Often, there is no financial advantage to pursuing a case. In the Canadian human rights system, damages are capped at $20,000. In the case of Ms. Mowat, legal costs amounted to $100,000.
To summarize the issue, the battlefield is neither equitable nor equal. You have certainly heard about professor Blackstock's case dealing with aboriginal children.
The system is not equitable. The Council of Canadians with Disabilities believe that the reinstatement and modernization of the Court Challenges Program should be accompanied by a new strategy regarding court cases at the Department of Justice. When that department deals with groups who advocate for equality, groups that have been historically disadvantaged in court, it should perhaps attempt to create a more level playing field.
I would now like to discuss the consultation funding envelope and the involvement of groups that promote equality.
The old program granted funds for consultations. In our brief we ask that this fund be extended so that consultations may be carried out throughout a court case. A sum of $5,000 is not sufficient to conduct accessible and bilingual consultations with persons with disabilities throughout Canada. Here again, the purpose is to see to it that Canada complies with its international obligations stating that court proceedings should take place in a manner that promotes the participation and independence of persons with disabilities.
We haven't given it much thought in depth. In the previous model, the litigation piece, it was case development, the litigation funding, and some negotiation dollars. I think for the pure litigation side that's important. I think the old program also had money for outreach and some impact studies. I think those pieces are important as well. In our view, the heart of it is the litigation funding, but that's not all. It isn't just the dollars for litigation. That's important for sure and we would like to see it. But part of it is also education and outreach.
Our society is arguably one of the richest societies in the history of humanity. But when you're disadvantaged, you don't have a lot of time to access Parliamentary committees, to go and seek out lawyers to take your case. You just tough it out in life, so part of it is the outreach, getting the message out to people who may have their rights infringed upon. We need to tell them they have a resource they could use to explore their rights, or to enforce their rights, against government action that's disadvantaging them. That's important.
The program also did a lot of work on capacity-building and researching the impact of decisions. It looked at future challenges and explored issues. At its heart, the CCP is a test case program. This is the reason we would like to see section 7 in there—it is rife with test case activity. It may fail. It may not. We don't know. That is for litigants to bring forward and for courts to decide. But to explore the contours of the charter, to fulfill the rights of disadvantaged and vulnerable people in this country, I think it's important to do all those.
I looked at some of the dollars in the old program. I've worked in the public sector a lot. I've worked in private sector. It's not a lot of dollars to fund the litigation, the amounts that the program did cover. It wasn't that they were writing a blank cheque to someone. It wasn't just an invitation to sue the government. It was really an encouragement model. It showed that there was other funding available and that this would top you up and get you capacity support and advice on strategy.
I believe it was Mr. Chipeur in the previous panel who said there was bias in selection. We're all humans. I guess there's always some bias. The issue is that there does need to be some vetting. The old program had about $2 million to $3 million annually. If I'm running that program, I'm not just going to hand over $50,000 or $60,000 to each one that comes in the door on a first-in basis. I want to fund the ones that have a chance of success in pushing the law forward, so this is important.
Without giving you dollar amounts, I'd say the funding needs to be increased, especially given that times change and litigation is costly. I'd say increase that funding, and make it stable and sustainable. I know my colleague and friend Mr. Bhabha was here recently. He talked about whether there was a constitutional right to charter challenges. That's an interesting point. If you think about it, disadvantaged people in this country can't access their rights. By virtue of being disadvantaged, the discrimination in the access process is itself a charter violation. He raises an important point. It's something you should think about in securing funding that is stable and bulletproof, as bulletproof as you can get it. It should be independent of government for sure.
One way of doing that is through consultation, by increasing the funding for consultations, and consultations at a national level and throughout the case. We found in our experience at the ACLC that this was very important.
It's also important in our experience as well to fund interventions into cases. That was a way to bring community coalitions together to be able to understand the importance of a case going up to a court of appeal, the Federal Court, the Supreme Court, and the impact it can have on their communities.
It was also important in terms of the impact study. If we got a positive decision and/or a negative decision, the community was involved in understanding the case, the impact it could have on them, and the potential outcome. It would be a part of developing the impact study, in participating in the impact study.
One of the things that we're advocating for in the inclusion of the new program is an element for training, an element for training of young lawyers, so that they also have the skills and the capacity and the abilities to be able to build and develop a test case, because the skill involved is very unique.
On outreach to the communities, I don't think the outreach dollars were really utilized a lot because they weren't very significant. Outreach to the communities and education to the communities on equality rights are significant if you really want to bring the community into the process.
I would say that the court challenges program as it is, from its previous iteration, and even recently in the consultation we held this weekend is very community based. They really make an effort to ensure that communities, the voice of communities, organizations representing communities on the ground are involved and drive the court challenges program.
Thank you for the compliment. A lot of people worked on Bill , there were various community advocates and lawyers who were quite active on it.
In terms of national security issues, let's focus on the Muslim community impact. For whatever reasons, Muslims in Canada are disproportionately affected by the national security file and the war on terror, globally, and in Canada as well. That can sometimes have discriminatory impacts directly.
So you have cases where we've had the security certificate issue where Muslim men were detained without charge, without access to counsel essentially, and with secret hearings because they didn't even have a trial per se. In that case, in the Charkaoui decision, the Supreme Court ruled in that instance.
That I believe was funded by CCP on a section 15 issue—and I still think there's a section 15 issue there—and they lost on that issue but they won on section 7. It's just fundamental justice that in Canada and in our system having essentially a secret hearing is antithetical to our system of justice and the rule of law. The special advocate model was created as a result of that decision.
That's one instance on particular communities, communities that my organization has experience with, or take, for example, the Arar issue. There wasn't legislation per se, but the charter can challenge government action, so what actions the Government of Canada took to lead to Mr. Arar's horrible situation in Syria. Those are the sorts of situations where national security can come up.
There's what I've sort of coined as trickle-down discrimination after national security. You have the front-end national security disproportionate impact on Muslims and those who are thought to be Muslims, and then you have the trickle-down effect.
Thanks for the question.
It's hard to say, because you could have a case starting in provincial law on government action and it's not funded, but we don't know where that case will go or what implications it will have. Take, for example, an administrative tribunal in Ontario. A charter issue arises, they rule on it, and it goes through some Ontario courts at the lower level. But then a B.C. court picks up on that decision and uses it. Now you have two decisions deciding, and it might set a national standard. You've basically set in stone a principle or a precedent, and there hasn't been an opportunity for that disadvantaged group to inject an interest at that first stage.
I don't know how you'd be able to say that this one or that one will have national implications. On that ground, practically it's hard to know, and on principle, the charter is meant to be a check on government action. It is not meant to be a check on federal government action. It is meant to be a check on all government action. That is why we think it should apply to both federal and provincial law and action.
Knowing that obviously there are political complexities in terms of how you roll it out and all of that, certainly we were happy to work with you in doing that. But I think as a first principle, yes, it should. How do we get to the point where we design a program that does, and where you don't ruffle too many provincial feathers and they're on board? That needs to be thought out for sure, but it doesn't dilute from the principle.
If I may take one second to address Ms. Levesque's point, I fully concur with her. I don't want to be misunderstood. Section 7 should be focused on assisting those who are disadvantaged. Our whole position is on disadvantage.