Canadian Heritage Committee on Dec. 11th, 2006

[Prof. Margaret Denike]

I know for many of the interventions, particularly those before the Supreme Court of Canada, the funding provided by the court challenges program typically only covers what are called disbursement fees. Those are the fees to acquire the materials, to redistribute or circulate them, to bring the teams together, to have the phone calls.

At least for any of the organizations I've had anything to do with, it's not about anybody having any kind of profit. Right?

[Scott Simms, Liberal, Bonavista—Gander—Grand Falls—Windsor, NL]

Understood.

[Prof. Margaret Denike]

I can only imagine that for larger firms that are in the business of profit, it would be prohibitive. I wouldn't be able to fathom how much it would cost.

[Scott Simms, Liberal, Bonavista—Gander—Grand Falls—Windsor, NL]

You used the term “substantive equality”. How diminished, in your eyes, is substantive equality in the absence of the court challenges program?

[Prof. Margaret Denike]

To cut such a program would be a huge blow to substantive equality, because substantive equality is the difference between formal equality, that is, treating everybody the same, which is the standard distinction, and.... I grew up with that, thinking that's what equality means, but substantive equality is a consideration of the different circumstances and situations that people are in, and accommodating those differences or rising to the occasion of those differences.

So the elimination of this program would be the elimination of substantive equality to the extent there is the possibility of government support and commitment to funding the realization of equality as an ideal—and not even as an ideal, but in practice when it comes to concrete issues.

[Scott Simms, Liberal, Bonavista—Gander—Grand Falls—Windsor, NL]

Has your group ever been approached by government in the past—former governments or the current government—to get your feedback on this particular program?

[Prof. Margaret Denike]

Not that I'm aware of, but I'm not a member of the staff; I'm just a volunteer.

[Scott Simms, Liberal, Bonavista—Gander—Grand Falls—Windsor, NL]

Thank you.

[The Chair, Conservative, Gary Schellenberger]

Thank you, and I think that ends our questions and answers for this segment of the session.

I must thank you, Ms. Denike. I apologize for calling you Margaret only the first time. Thank you very much for your answers.

I thank the committee for your questions.

[Prof. Margaret Denike]

Thank you for your time.

[The Chair, Conservative, Gary Schellenberger]

Thank you.

We'll have a five-minute break until we get our new witnesses here.

[The Chair, Conservative, Gary Schellenberger]

I call this segment of the meeting to order.

We welcome our witnesses. We've realigned everyone to go in order.

We'll just let each one of you introduce yourselves and the group you're representing.

The meeting will be over at 5:30, so we'll try to make our comments as short as we can and our answers as short as we can. We'll be sticking to five minutes for questions afterwards.

We will start off with Ms. Landolt, please.

[Gwendolyn Landolt, National Vice-President, REAL Women of Canada]

Thank you, Mr. Chairman. It's our pleasure to be here.

REAL Women has been involved with the court challenges problem, or I would say uninvolved, because we have been excluded totally from it. We have tried for years to get some sort of funding and some sort of recognition. Because we're not ideologically in tune with the court challenges program, we have always been denied funding.

We have grave concerns about the operation of the organization. To us, it is an example of government corruption and taxpayer abuse. The program does not report to Parliament, nor does the Access to Information Act apply to it. The consequence of this is that the administrators of the program have been able to do whatever they like, whenever they like.

For example, the mandate says it must be for disadvantaged groups, it must be on legal merit, and it must be for equality. Those were never defined, so the administrators of the program have quite happily defined it to suit their own private interests. I can give you an example. I understand you have a copy of our brief. Page 2 gives you some examples of the funding. For example, in 1992, a Toronto Bay Street lawyer, Elizabeth Symes, who was one of the founders of the feminist legal arm called LEAF, received funding so she could get a tax deduction for her nanny. It's who you are and your connection to the feminist movement and other special interest groups that determines whether you get funding.

In 1995, the CCP gave $5,000 to a social worker in Saskatoon to see whether she could build a case to remove section 43 from the Criminal Code. Section 43 allows parents and teachers to discipline their children if it's reasonable under the circumstances. After she did her research for $5,000, the CCP then gave money for another special interest group to go through three levels of courts to try to remove section 43. REAL Women was without any funding. In order to protect parents, we had to go through the three courts without a penny from any other group.

A so-called disadvantaged group is CUPE, the Canadian Union of Public Employees. They're very wealthy, because of course they have compulsory union dues. They received money for two cases on which REAL Women had to intervene out of their own pockets, both of them dealing with homosexual benefits and rights. We were protecting traditional family, and of course we were ignored by the court challenges program.

We were particularly displeased by the fact that the court challenges program, since it began, has been funding a feminist group, LEAF, Legal and Education Action Fund, on the grounds that they were going to argue for the equality of women. Let me tell you, LEAF does not represent women; it represents a special interest group of feminists only. The point is that nobody can represent women. We're as diverse as men. Yet they have been funded by the CCP for over 140 cases. It's always allegedly on behalf of “women”, but in fact it's on behalf of a feminist ideology only.

I might say that NAWL, the former speaker, also does not represent women. For some of the cases she outlined...there's no way a majority of Canadian women will support their arguments before the court--one or two, yes, but the vast majority were extremist, feminist, ideological cases. It was using judicial fiat to get around Parliament, which should be dealing with the decisions. Instead, with CCP funding, radical feminists were in fact funded to do an end run around Parliament on many, many issues.

We've found there's no equality of access whatever to the CCP, and we're prime examples of it. For example, to call LEAF, which has 140 cases funded, a disadvantaged group is amazing. We've found under the Access to Information Act that between 1985 and 1989, LEAF received over $800,000 from the Status of Women. It received $1 million from Ian Scott, the then Attorney General of Ontario. It received over $900,000 between 1992 and 2002. Yet our organization, which is funded only by our members and donations, has a grand total budget of $120,000 a year. We are certainly disadvantaged, but we've never been able to break through the court challenges program because we're not ideologically in keeping with those administering the program.

The CCP is very discriminatory. In fact, it's so ironic that an organization that is supposed to support fairness and equality in Canada is truly one of the most discriminatory, unequal, and unfair agencies we have in the Canadian government today. Our organization is a prime example of one that has experienced straight-on discrimination from the CCP. On page 6 of our brief we give you examples of three cases where we applied and they told us our views did not support equality. But we have equality in our objects of incorporation. We have it in our name. REAL Women stands for realistic, equal, and active for life. We all believe in equality as women, but we don't have the feminists' interpretation of equality; therefore, we've suffered very bitterly from discrimination at the hands of this court challenges program.

Every time we've applied for grants we've been told that we don't support equality. It's always LEAF and other feminist organizations that get the funding because only they apparently understand equality. But other women, who are the vast majority, are totally ignored because we obviously are not informed.

I am a lawyer and I've been to court many times. REAL Women has intervened in the Supreme Court of Canada over the years approximately 12 times, funded out of our own pockets, on issues for which LEAF, NAWL, and the homosexual organizations have all been funded.

It is a concern to us that the court challenges program has been used as a way to change the social values of this country by funding only one side of an issue, and there is no broad openness to others. To have other groups, such as the woman who just spoke from NAWL, talk about equality of access is truly very offensive to those of us who have had to go to court and pay out of our own pockets.

The homosexual activists in Canada, Egale, said in their own newspaper on October 19, “No group has benefited more from Court Challenges funding than the queer community”, which the column thanks. It said that money from the court challenges program helped Egale win equal marriage rights through the courts in B.C., Ontario, and Quebec.

They have been funded, whereas REAL Women, struggling to protect the traditional understanding of mother, father, and children, have had to pay through the courts again. We've tried to protect traditional values. We've tried to protect the laws that Parliament and the legislatures have passed. These groups that do not agree with them have used the money to usurp the laws and have their own objectives and ideology take over our system of government.

It's significant to us that the traditional definition of family—defined as mother, father, and children—has been severely impacted by these cases, funded by the court challenges program. It is now beyond dispute that children thrive best in opposite-sex family environments, where they learn gender identity and sexual expectations from the biological parents. These children thrive best academically, financially, emotionally, psychologically, and behaviourally, and we've documented all that.

But instead, what has happened is that these extremist groups have used the courts with court challenge money to usurp what is a concern for children.

For example, France's National Assembly said in January 2006 that they cannot accept same-sex marriage because of the effect on children. In July 2006, the New York State Court of Appeals and the Supreme Court in Washington, D.C., also rejected same-sex marriage.

But instead, you have the courts taking the lead in trying to tell us that it's adults' rights to totally ignore the rights of children. The question to be addressed is why does the Canadian court challenges program have a bias for feminists and homosexual cases? The answer is, and we've researched it very carefully, that members of the homosexual group Egale sit both on the board of directors and on the advisory board of the organization.

[The Chair, Conservative, Gary Schellenberger]

Could we come to a conclusion?

[Gwendolyn Landolt]

Yes, thank you, Mr. Chairman.

But you have a conflict of interest. For example, the current executive director of the National Association of Women and the Law is a former executive director of the court challenges program. They're all intertwined and interlocked, administering funds to go only to their own groups. Again, on page 11 of our brief we give you a few examples of the intertwining that's going on between the advisory board, the board of directors, and also in the whole administration of the program.

In summary, the CPP, which is funded by the Canadian taxpayer, has been established to support unfairness and also discrimination in Canada. With a few exceptions, it has not advanced the rights of minorities and disadvantaged groups, but in fact it has advanced the interests of special interest groups, which are clearly not, with the enormous funding they receive from the government.

For example, in 2004-05, Egale received a grant from the Canadian heritage department for $21,000. What was that for? That was in addition to CPP funding.

The LEAF group has had hundreds of thousands of dollars, and NAWL receives $200,000 to $300,000 every year from the Status of Women. They're scarcely disadvantaged.

They go to court, and the courts are not prepared to handle these moral issues. As a lawyer, I know they do not. They do not have access to the research; they do not have access to all the social facts of a case. They hear only one side and they're not ready; it's either win or lose. They cannot compromise like Parliament can do. What has occurred with the court challenges program is simply wrong in principle and in result.

Thank you, Mr. Chairman.

[The Chair, Conservative, Gary Schellenberger]

Thank you.

We'll have to try to keep things close, because we're done at 5:30.

Mr. Carpay.

[John Carpay, Executive Directeur, Canadian Constitution Foundation]

Thank you, Mr. Chairman.

Good afternoon, my name is John Carpay and I am the Executive Director of the Canadian Constitution Foundation. I learned French in Quebec, at Laval University, where I did my BA in political science. I also have a law degree from the University of Calgary.

Our organization has an interest in the Court Challenges Program because a man in British Columbia, whose name is James Robinson and who is the Chief of the Nisga'a band in northwestern BC, wanted to make use of this program. As members of Parliament, I am sure you know that in 2000, the Nisga'a Final Agreement Act was passed. It established a new government and a new constitution, as well as a new citizenship for the first nations peoples in northwestern British Columbia. With the assistance of our organization, James Robinson applied for funding, because he felt the agreement violated the equality rights set out in section 15 of the Canadian Charter of Rights and Freedoms.

In 2003, the response from the Court Challenges Program was that it would not provide financial assistance to Mr. Robinson, because the program did not agree with Mr. Robinson's objective. In other words, the program did not share his vision of equality. I see here today a number of members of Parliament representing various parties. There are four parties in the House of Commons—in other words there are four visions of justice. Each party has its own definition of justice.

As you know, this is a subject that has been debated since Plato wrote The Republic. How do we define justice? What are the aspects of justice? The same is true of equality. There are a number of definitions of equality, not just a single vision of it.

Under the Court Challenges Program, taxpayers' money was paid to the feminist group LEAF, the Legal Education and Action Fund, which, in its definition of equality, advocates the constitutional right to social assistance, abortion, and a different definition of marriage. That is its right. We enjoy freedom of expression and the freedom to go to the courts to seek change, so as to take part in the political process. All that is well and good. However, is it fair that taxpayers' money is used to promote a single group's view of equality and that the same program rejects all other visions of equality? There are a number of different visions of justice and equality.

In a democracy, there are debates, including debates before the courts involving individuals who are equal. However, when the state provides taxpayers' money to help out just one group or just a few groups that share a single vision of equality, that is not fair. That is why I am hoping the government will stand by its decision not to use taxpayers' money to advocate and promote a single vision of equality.

Thank you.

[The Chair, Conservative, Gary Schellenberger]

Thank you.

Mr. McVety.

[Dr. Charles McVety, President, Canada Christian College]

Mr. Chairman, members of the committee, I thank you for allowing me to speak today.

I'm the president of Canada Christian College. We're a 40-year-old institution training workers for the church in the city of Toronto. We have approximately 1,200 students. We've graduated over 4,500 over the last 40 years, most of whom are serving congregations right across the country of Canada.

Some 80% of our students are visible minorities, while 90% of our students are actual minorities. These new Canadians who are part of our great country of Canada have somehow been excluded from the court challenges program. What is their sin that has caused them to lose their status in this program? The sin is that they are pro-family, that they are pro-religion, and that they just simply do not fit the ideology of the court challenges program. This program appears to say that all Canadians are equal; however, some are more equal than others. Some are worthy of funding, some are not worthy of funding. Somehow, our people have been found to be less equal, and this has been decided purely upon ideological lines.

This court challenges program was founded for the purpose of clarifying equality rights in this country of Canada. It was not founded for the purpose of advancement of special interest groups in this country. However, according to the review, the report of the program directors themselves, the report that they put forward in the year 2003 states that it is for the advancement of equality of rights. We do not believe this is the purpose for the court challenges program. Therefore, it should not be funded by a government that is committed to equality.

We, of course, as Canadians, and as religious Canadians, are committed to fairness. We're committed to equality. We are committed to fair treatment right across the board—not that some are more equal than others, not that some people are attempting to restrict rights and some are attempting to advance rights. This court challenges program is saying exactly that. Furthermore, it's doing so with great conflict of interest.

Think of this. The government pays Canadian citizens to sue the government. We are the only country on earth that pays our citizens to sue ourselves. This is a tremendous conflict of interest, and it should therefore not be funded.

There's a further conflict of interest, and you've heard it come up several times already today. The advisory group is made up of people who receive the funding. These people who gain access to millions of dollars are the very people advising the court challenges program of where to put the money—organizations like Women's Legal and Education Action Fund, with over 140 cases themselves; organizations like Egale and others that you've heard of. They are funding challenges to our legal system so that people like Robin Sharpe can put forward the idea of equality, in that he should be equal in this country as a child pornographer who creates child pornography. How disgusting it is that our government would fund such a challenge? Yet for those of us who are pro-family, when we go and say we do not want these rights to be given to Robin Sharpe, it is then declared that we are restricting rights and we are therefore not allowed to have any funding to intervene on behalf of Canadians across this country.

Who pays this bill? Not you, not Parliament, but the taxpayers of this country. They pay the bill of the millions of dollars every year that go to this program. But that is the tip of the iceberg. After the millions of dollars are seeded into the program, court challenges begin, many of them frivolous, and then the government has to put forward millions of dollars to lawyers to defend the government's position against these challenges that it's paying for.

The reality is that people like me—clergy members, teachers, parents, and children—do not have equality of rights in the court challenges program. However, people who want to attack the rights of those like us in this country appear to be more equal than others. This court challenges program has nothing to do with rights, but everything to do with advancing an ideological agenda in which we, as parents, somehow are not included.

We are people of fairness. We do believe in equality. We do believe in rights. But somehow the court challenges program does not believe in our rights. Therefore, we ask that the Government of Canada cancel the funding to this program.

Thank you very much.

[The Chair, Conservative, Gary Schellenberger]

Thank you.

Mr. Rushfeldt.

[Brian Rushfeldt, Executive Director, Canada Family Action Coalition]

Mr. Chairman, members of Parliament, thank you for the opportunity to bring forward for the record Canada Family Action Coalition's concerns and position about funding a program such as the court challenges program.

Let me first state that we agree with the position the government has taken in suspending the program. We'd ask to have it not reinstated. I'll provide some reasons why we'd like to see that.

There are three principles on which we believe a program such as CCP should not be funded with tax dollars. First, the very principle of section 15 of our charter, equality before the law and under the law, should and would require that all citizens in Canada be provided equal funding. A program that gives government funds, in fact tax dollars, to a non-profit organization so that the non-profit organization can then pick and choose who they wish to fund violates the very principle of equality. Funding for only some people or some groups creates an inequality of access to the law. Section 15 of the Canadian Charter of Rights and Freedoms in part reads, “equal benefit of the law without discrimination”. I would read that as equal benefit of the law without discrimination.

The CCP website states that one of its goals is to help disadvantaged groups prepare cases and file court actions against the government. So in essence, when in someone's opinion there appears to be a violation of some right, they will fund. The principle that they espouse to be one of the fundamental reasons for existing is equality, which they functionally do not deliver, I believe.

Some scholars have said that the dialogue in a court action is a dialogue between courts and the public. But when certain groups are funded, the dialogue really is not between courts and the public; it's between specific individuals and the courts.

Using tax dollars to create an advantage for a select few is a violation, in my estimation, of the charter. It's also an inappropriate way of resolving perceived disparities in the Constitution. We've seen a number of cases where government money has been spent for various reasons that I believe even the Auditor General has questioned.

Second, we do have concerns about how society resolves disparities, or perceived disparities, in the Constitution. If you review the cases that were funded by tax dollars, you will see that in most of those cases, I believe, those issues should have been resolved through dialogue with our elected Parliament, not with the power of one court imposing its unilateral view on all of us.

We are calling for an end to tax-sponsored court resolutions that prevent democratic function through Parliament. I would ask you to think about the stringent safeguards built into our Constitution for changing the Constitution. Why are they so stringent? To protect against a few people, elected or non-elected, from altering the law at the whim of someone or some group wanting some change. The amending formula holds that citizens--many of them, and in fact a majority--must be from various provinces, and they are people who are required to amend the Constitution. Yet some of the government's funding has encouraged certain groups to take actions and lobby through courts so that we can have that Constitution altered through court cases.

The third point I make is that if this or a similar program were to be reinstated, we would then ask this: who is qualified to determine the “disadvantaged” groups, as the CCP calls them? I see no great authority in the list of names on the CCP website. Does one of them or all of them have special qualifications to determine who meets the criteria for disadvantaged persons or groups? The equality advisory committee lists certain people, but from a very limited number of segments of society. Are these people duly qualified to decide which group gets taxpayers' dollars?

As I mentioned earlier, funding one side of a case but not another side of the same challenge creates, not resolves, inequality. I can name numerous disadvantaged people from my perspective: seniors, the handicapped, children, religious groups, left-handed people like me who can't find left-handed scissors, Ford owners, even citizens who are in Canada illegally. Would all of these people get funding for their challenges? Who decides who's disadvantaged?

The government has made the right and proper decision to stop funding the creation of inequality through this program. No one has a charter right or a guarantee to taxpayers' dollars. In fact, the attitude of entitlement to tax dollars has to be stopped.

As the Canada Family Action Coalition, we respectfully ask that you, the committee, recommend in your report that no funding of inequality-producing programs be given any longer.

Thank you.

[The Chair, Conservative, Gary Schellenberger]

Thank you.

First question, Ms. Keeper.

[Tina Keeper, Liberal, Churchill, MB]

We only have five minutes, I believe. My first questions will be to all of the panellists.

I thank you for your presentations. It was interesting.

I would like a yes or no answer. Do you believe in the Canadian Charter of Rights and Freedoms?

[Gwendolyn Landolt]

It depends on how it's interpreted, obviously, and you only get one side arguing for it—

[Tina Keeper, Liberal, Churchill, MB]

So it depends. Could we just keep our answers short, please?