Canadian Heritage Committee on Dec. 11th, 2006

[Ed Fast, Conservative, Abbotsford, BC]

I understand.

But NAWL has received some funding. Is that right?

[Prof. Margaret Denike]

Yes, it has, for consultations--three consultations—

[Ed Fast, Conservative, Abbotsford, BC]

All right, so there have been three different occasions.

[Prof. Margaret Denike]

—and one intervention. It's engaged in only one court case intervention that has received funding.

[Ed Fast, Conservative, Abbotsford, BC]

So there have been three consultations and one intervention. Is that correct?

[Prof. Margaret Denike]

Yes.

[Ed Fast, Conservative, Abbotsford, BC]

And what about LEAF?

[Prof. Margaret Denike]

Almost exclusively, LEAF has been involved in test case interventions, because its mandate is really to advance equality arguments, to advance equality arguments before the courts.

[Ed Fast, Conservative, Abbotsford, BC]

Do you know how many?

[Prof. Margaret Denike]

I can't speak to that, no.

[Ed Fast, Conservative, Abbotsford, BC]

But there has been more than one?

[Prof. Margaret Denike]

Yes.

[Ed Fast, Conservative, Abbotsford, BC]

All right.

Does NAWL or does LEAF also have some representation on the court challenges program as it then was, either on the board or on the panels or advisory committees or subcommittees?

[Prof. Margaret Denike]

NAWL does now, and I think I'd feel most comfortable--only because this is what I've agreed to do--to speak for NAWL.

First of all, the only body, as I understand it, of the court challenges program that has representatives is the advisory committee, unless I'm wrong. But I think I understand the program enough to say that the panel, for example, and those decisions, and the board or the groups that would make decisions with respect to the distribution of funding, don't have representation from organizations.

I'm not entirely clear what the mandate of the advisory committee is, but I understand that it comprises representatives from anti-poverty organizations, gay and lesbian organizations, women's organizations--this kind of thing--and there is also an advisory committee for language rights. Though I can't speak to its mandate, I understand that its task and the work that it does concern bringing perspectives on equality from all of these organizations that represent disenfranchised groups.

[Ed Fast, Conservative, Abbotsford, BC]

It's safe to say that some of the organizations that may benefit from receiving funding under the program are represented either on the board or on the advisory panel or—

[Prof. Margaret Denike]

As I said, an advisory committee is removed from any decision. It has no budget and no decision-making authority with respect to the distribution of funds or the selection of cases. It is the only one that has representational capacity.

[Ed Fast, Conservative, Abbotsford, BC]

But it does advise the CCP on various issues relating to the delivery of the program. Is that correct?

[Prof. Margaret Denike]

I'd be interested in seeing what the terms of that advisory committee would be. I'd be speculating to say this is the mandate of that committee.

[Ed Fast, Conservative, Abbotsford, BC]

I have one more question. Thank you, Mr. Chair.

The nub of the problem has been that there are those who are concerned that the program has been delivered in an inequitable way. We've heard a lot of talk about equality, but it's that in fact it's been delivered to specific groups and not to others, who perhaps were also deserving of funding.

I'll quote to you from the summative evaluation of the court challenges program from 2003:

The administrative file review and key informant interviews with representatives from the Corporation administering the CCP both indicate that the Program, as currently delivered, will only support cases that protect and advance rights covered by the Program. In other words, a group or individual that would present legal arguments calling for a restrictive application of these rights would not receive CCP funding.

The report goes on to restate a number of times that it seems that the word “disadvantaged groups” has been defined in a very narrow way to perhaps reflect a certain ideology rather than fairness.

Could you comment?

[The Chair, Conservative, Gary Schellenberger]

Make it a short comment.

[Prof. Margaret Denike]

I think that's a really important question, because it gets to the heart of what I think this program is about in many ways, but also what our courts and legislatures have been grappling with for a really long time, the extent to which it has a commitment to equality.

I recognize that some people don't, that some people think equality is just not what they're into, and that's a different matter. But to the extent that we make that commitment, we recognize—and it's interesting in legal history watching the progressive recognition of what it takes, or what equality might mean, or what we might want it to mean—and to the extent that it's about just treating everybody the same....

No, I shouldn't start the sentence that way.

I think certainly our courts, or our Supreme Court of Canada, at least, has recognized that this is quite an impoverished understanding of equality. When we say that the program is about advancing some rights, I think then it's about advancing equality rights, and equality rights particularly as they are recognized as constitutional equality rights, not only in our country but internationally.

If I am permitted.... Okay, I won't go to that anecdote then.

What that commitment actually entails isn't just giving everybody the same thing, because nothing will change in our society to the extent that we do that. If we have half a table here that doesn't have access and wheelchairs in another half that do, and we give the exact same treatment, that half will still not be able to go to the next floor if we don't commit to getting elevators, for example.

That is what equality is really about; that is, making a commitment to those who are disadvantaged, not just to everybody. Of course, what that means is saying that there are some groups who are more deserving of certain resources, because what we want at the end of the day is for them to be able to get to the second floor, or be able to have access to health care benefits. That might mean providing more funds to those who happen to be hearing impaired, for example, or bound to wheelchairs, when they seek medical services.

There are many who would say, “But that's not fair. Why does that group get these resources”—let's say an interpreter—“and we don't?” That's where I think we have to step back from our own interests and say, that's because we're actually committed to what we call substantive equality now, and that is equality, at the end of the day, where those resources are actually available to everybody, not just what you give and what you distribute, but what's available, and what opportunities are there at the end of the day.

[The Chair, Conservative, Gary Schellenberger]

Thank you.

Mr. Simms, we only have five minutes, so you're going to have the last questions.

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

Thank you, Madam, for your presentation. I want to touch very briefly—we don't have enough time, obviously—on the term you mentioned, “economically disadvantaged”, which seems to be, I would assume, the common thread in the challenge for people wanting to do a section 15 challenge, for instance, under the charter.

Can you give us a picture of just how intensive financially something like this would be, to make a challenge under, say, section 15 for any identifiable group or individual?

[Prof. Margaret Denike]

It depends on what the objective is. If it's for conducting a consultation on the relation...for example, you're right, you're not looking at litigation fees. A case before a human rights tribunal is generally recognized to be a lot cheaper than one that might require a long list of transcripts because the case has been appealed several times and is before the Supreme Court of Canada. The court challenges program, I understand, provides a maximum of $30,000 for cases that would widely be recognized as costing, depending on the nature of the claim and what's involved and whether or not you need to see all the transcripts, and those kinds of thing, tens of thousands, if not hundreds of thousands, of dollars.

I'm personally not a lawyer, so I've only heard this anecdotally.

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

I guess I'm just relying on your peripheral knowledge of recent cases.