Canadian Heritage Committee on Dec. 11th, 2006

[Prof. Margaret Denike]

I think I have it. Yes, thank you.

[Maka Kotto, Bloc, Saint-Lambert, QC]

Can you hear me? Very well.

Can we restart the clock from this moment on, Mr. Chairman?

[The Chair, Conservative, Gary Schellenberger]

Yes. Well, whatever—

[Maka Kotto, Bloc, Saint-Lambert, QC]

Thank you. A French philosopher by the name of Paul Valéry, if I remember correctly, said that a government's greatness is measured by the way it treats its minorities.

The mandate of the Court Challenges Program was to protect the rights of minorities, preserve democracy and avoid its dismantling. Access to courts in French, and the promotion and defence of the linguistic rights of the francophone and Acadian communities also form part of its mandate. Those are but two examples. We in the Bloc Québécois and on this side of the room believe that it was a crucial and non-negotiable program given what we have seen September 25.

I now come to my question. In the event that this program is abolished—for the time being, this is what is being considered because half the funding was cut and it is just a matter of time before the other half is cut as well—what would be your take on things, how do you see the consequences?

[Prof. Margaret Denike]

Generally speaking, I think the consequences for us as Canadians would be to endure a tremendous blow to a very principled approach to the very thing you might applaud Valéry for, in recognizing what is the greatness of a government. I've given some thought to this. I'm really trying to think of other ways to understand and appreciate it. I think we often don't get things right, and this is one thing we have got right; that is, despite our impulses and inclinations and those of the majority, we make these kinds of commitments to minorities, despite these costs, because we're committed to an affirmation of diversity and a celebration of equality.

When you remove the means we have to achieve that, we're really just exercising a blow to those commitments, principles, and values. And there is a human cost to that, which is that those who are most disadvantaged cannot actually pursue equality claims. It's to the disadvantaged I think that we need to have the principled commitment.

[Maka Kotto, Bloc, Saint-Lambert, QC]

I will ask you a question that I have already asked other witnesses. Do you believe that the Court Challenges Program weakens or, should I say, weakened the powers of the legislative branch and strengthened those of the judiciary?

[Prof. Margaret Denike]

Not at all. I think that's an interesting question.

First of all, I don't really see it as a power struggle. I think a true democracy has as many decision-makers and influences and voices as possible in the shaping and articulation of our law. I wish I had given a little bit more thought to that particular question, because I realize that's on the minds of many.

Whenever I see considerations, for example, that somehow our courts have too much power, it's often on an occasion where I think it's really just a decision.... I'm not articulating this very clearly, but I often don't see the things the courts are being accused of as actually happening; we're not talking about the making and imposing of laws against a majority, despite the interests of people. We're talking about the interpretation of principles that we have democratically affirmed.

So, no, I don't see it in those terms.

[Maka Kotto, Bloc, Saint-Lambert, QC]

Thank you.

[The Chair, Conservative, Gary Schellenberger]

Mr. Angus.

[Charlie Angus, NDP, Timmins—James Bay, ON]

Thank you very much.

I appreciate you coming here today.

Our discussion on court challenges has been an interesting process for me because it's clarified a number of things. What began as an exercise in so-called accountability--our Treasury Board president said it was getting rid of programs that were wasteful and out of touch--has really become...it's clear there's a Trojan Horse aspect to this with the Conservative Party on an issue of what is the notion of rights. We're getting a very clear picture that what's being argued here now is that in Canada the notion of access, the equality of access, for rights is somehow at odds with individual rights.

I'd like to talk to you about your experience in terms of constitutional law. In our constitutional law we have individual rights, but we also have collective rights: francophone language rights, first nations rights under section 35. When those rights were proclaimed, they were not enacted upon. First nations had no more right to their section 35 rights after they were proclaimed in the Constitution than before; they had to fight for them in court. We had a number of very expensive cases to establish the nature of those rights.

I'd like to ask you, is it correct to say that the general jurisprudence in Canada is that we have a notion of collective rights alongside the notion of individual rights? Has that been the common practice in Canada?

[Prof. Margaret Denike]

I'm not an expert in that way. I'm speculating, I suppose, but I would say that would be generally consistent with what I understand there is a principled commitment to, and that is collective rights. But I don't think our courts would necessarily agree with that speculation.

[Charlie Angus, NDP, Timmins—James Bay, ON]

Would our courts say that the notion of collective rights supercedes individual rights? How would they balance it? Has there been a sense that the notion of collective rights is somehow a threat to individual rights? Is that a discussion that takes place with the judiciary in Canada?

[Prof. Margaret Denike]

I couldn't speak to that.

[Charlie Angus, NDP, Timmins—James Bay, ON]

The question then is simply to get back to the question of the notion of equality of access. Are rights really rights if people can't make use of those rights, if they do not have the ability to have those rights enacted?

Secondly, does the enacting of providing access to rights to minority groups to make use of their rights somehow come at the expense of the common good of rights? Does that come away from the majority's rights? That seems to be the argument I'm hearing brought forward. The argument is that if we allow a group to exercise its rights, and they can only access their rights if they have access to law in order to establish their rights, it somehow comes at the expense of the larger majority. Could I have your comments on that?

[Prof. Margaret Denike]

I don't quite understand your question. Maybe if I say a few words, you can clarify my understanding.

I understand I have human rights generally, and this is what we're talking about when we say rights, which is something we all would affirm. We can take a general litmus test on the Canadian public and ask what they think of equality or what they think of the freedom for mobility. I see that as consistent with the interests of everyone. I don't see necessarily a collision, as you have perhaps characterized it.

[Charlie Angus, NDP, Timmins—James Bay, ON]

I didn't think there was a collision, but that seems to be raised as one of the objections to the court challenges program. The belief is that if you put money aside to allow a minority group to get access to court in order to establish rights, establishing rights for a minority group somehow comes at the expense of the overall majority. That seems to be the argument that's being brought forward, and I would like your comment on it.

[Prof. Margaret Denike]

I understand.

The comment I was sketching a moment ago is really appropriate then in that case. I see that the commitment to foster and protect the rights of those who least have them, which is what we really need to most concern ourselves with, is in the interests of the majority. That is my comment on that. It will always be in the interest of the majority.

I'm clearly not coming from the same place when I say that, because the majority, to the extent that is the broader Canadian society that we are all members of, will be living in a place where they can be assured that if their son, daughter, or they themselves become disabled, they will not then lose the entitlements and access to justice that they enjoyed when they weren't.

[Charlie Angus, NDP, Timmins—James Bay, ON]

Okay. Thank you.

[The Chair, Conservative, Gary Schellenberger]

Thank you.

Mr. Fast, please.

[Ed Fast, Conservative, Abbotsford, BC]

Thank you, Mr. Chair.

By the way, thank you for coming and attending. I appreciate your being here.

I just want to correct one thing to start off with. Mr. Angus somehow indicated that one of the chief objections to this program was that somehow there was a disjunct between access to asserting equality rights and the equality rights themselves. I don't believe that's the primary objection. Access is really like a portal, like a doorway, and the major concern has been that the door has been open for some and it has been closed for others. As I understand it, that's the main argument that opponents of this program have put forward. In addition, as a government, we're looking at focusing on delivering the resources in a more effective way and making sure the money gets to the people who need it.

I'd like to become a little more familiar with your organization. I believe you represent the National Association of Women and the Law. Is that correct?

I think earlier on you mentioned a number of organizations you were also affiliated with.

[Prof. Margaret Denike]

Yes.

[Ed Fast, Conservative, Abbotsford, BC]

Those have slipped my memory. Could you just repeat those?

[Prof. Margaret Denike]

There is just one other, and that is the Women's Legal Education and Action Fund, and I believe the justice committee has already had a presentation from a representative of that organization.

[Ed Fast, Conservative, Abbotsford, BC]

Okay, so we've got LEAF and we've got NAWL.

Has NAWL ever received funding under the court challenges program?

[Prof. Margaret Denike]

Yes, though NAWL is not unlike LEAF in the business of court case interventions for the most part. In fact, as I explain to my students who are interested in kind of a quick answer to the question, “What are the national women's legal organizations?”, I think of the two organizations as concerning themselves with the two ways in which laws are generally introduced or expanded and reformed in this country, and that is through legislatures and through the courts. LEAF concerns itself with court litigation.