Status of Women Committee on Dec. 11th, 2007

[Nicole Demers, Bloc, Laval, QC]

I would like to know if this has had a detrimental effect on your military career.

[Capt Jennifer Lynn Purdy]

I don't know yet, to be honest.

I didn't ask the Canadian Forces permission to appear before the Committee today.

Also, I have just started a Web site—www.stoprape.ca—with Velvet LeClair, a friend of mine who is here today. We saw that there was no Web site.

on a national front that addressed the subject.

Basically I don't know how it will affect my career in the forces. As a family doctor, given the chronic shortages both in the forces and in the civilian world, I don't think it's going to be that much of an issue. I may not get a promotion or two. I honestly don't know. But to be honest, on an ethics front I can do a lot more good by talking about this, even if it's a little bit uncomfortable for some persons within my organization. Obviously it's a very easy choice to make. If I were to stay a captain all my life, there'd be no worries.

Thank you.

[The Chair, Liberal, Yasmin Ratansi]

Now we go to Madame Boucher, cinq minutes, s'il vous plaît.

[Sylvie Boucher, Conservative, Beauport—Limoilou, QC]

I want to thank all of you for being here today.

It's very positive to hear different points of view. We heard a lot of things this morning, and some are more troubling than others.

I would like to ask you this. Could the cases funded through the Court Challenges Program, or CCP, have been handled through a different avenue? In terms of the cases we heard about this morning, would it have been possible to launch a challenge through a different avenue? Is there a better way of doing it than the CCP?

Can someone answer that question?

[Mary Eberts]

If I may start with that question, as a lawyer with over 30 years of experience, I often find myself looking for ways of raising these questions, of bringing them forward, of trying to get justice for women and for my clients.

It is fairly safe to say that we do not recommend that a major challenge under the Constitution of Canada or the Charte des droits et libertés de la personne du Québec be brought unless there is no other way, because if you can bring a human rights complaint, if you can bring a private law case against an individual, if you can achieve some law reform by lobbying government--if you can do any of those things, it is less difficult than bringing a major case. It is less expensive. These kinds of cases that are funded by the court challenges program are cases of last resort, cases brought when there is no other answer.

When you applied to the court challenges program, one of the questions on the application form was specifically your question: what else have you tried? Unless you could say you had tried everything and thought of everything and nothing else would work, they would not fund you. It's as simple as that.

[The Chair, Liberal, Yasmin Ratansi]

Madame Boucher, maybe we could ask Professor Sheppard and Professor Mahoney to give you some input, because they are experts as well.

Professor Mahoney, could you respond to the question by Madame Boucher?

[Prof. Kathleen Mahoney]

I'll add to what Mary Eberts just said about the qualifications for funding under the court challenges program, which is important to put on the table. Court challenges funding is not given unless the litigation affects large numbers of people. It's not an individual-based type of litigation fund like legal aid. It's designed to deal with people who are suffering under the impacts of law in a broad manner. So that's one point.

As for whether it could be better, like anything, I'm sure it could. The court challenges definitely is a very good program. It would be better if it were broader based, if it were based in such a way that provincial legislation, for example, could be argued to be either upheld, struck down, or interpreted in ways that were more inclusive and protective of human rights.

A number of major cases have been decided that were influenced by charter decisions taken after the court had the benefit of hearing from various intervenors. It affected provincial legislation interpretation. I'm thinking, for example, of cases to do with pregnancy discrimination, sexual harassment, and hate speech at the provincial level. If the court challenges program hadn't existed and those cases hadn't been dealt with under the charter, we might not have had those kinds of decisions at the provincial level. It's hard to know how many people could benefit or how society could benefit from different kinds of interpretations of provincial legislation through a similar program. But from the cases that were decided that were influenced by charter decisions under court challenges, I think we can see there's huge potential there.

Third, most of the litigation under court challenges was done via interventions, as opposed to starting a legal matter from scratch and bringing that up through all the court levels. Interventions are not the ideal way of doing litigation, because when you intervene at the appeal court level, the Supreme Court of Canada, you're basically stuck with what's been done at the trial level, in terms of the facts that go to the trial judge when the litigants put the case forward.

When one applies to intervene—

[The Chair, Liberal, Yasmin Ratansi]

I have to ask you to wrap up, because you've gone over your time.

[Prof. Kathleen Mahoney]

You don't get to intervene unless you can demonstrate to the court that your intervention's going to be in the public interest. That's an important point to be considered.

[The Chair, Liberal, Yasmin Ratansi]

Thank you.

Madame Mathyssen is next for five minutes.

[Irene Mathyssen, NDP, London—Fanshawe, ON]

Thank you, Madam Chair.

I have a question, and any of the presenters are invited to answer. I realize my time is limited.

One of the things that have become very clear is that the court challenges program is not expensive. It has an annual pool of about $2.75 million dollars to help individuals who are concerned about violations of language equality rights. Among the recipient groups, as has been mentioned here, are the Chinese Canadians seeking compensation for the head tax. We heard from disabled activists that they also received support in fighting VIA Rail.

Clearly this is not a program that is going to significantly impact budgets. It's a very small part of budgets. The disabled community was able to establish some mobility rights, and the government has already apologized for the Chinese head tax. So when you take all of that into consideration, why on earth would the government cut the court challenges program? What on earth could be the rationale? Why do it?

[The Chair, Liberal, Yasmin Ratansi]

Ms. Eberts, you have 30 seconds to answer, as do Professor Mahoney and Professor Shepherd if they like.

[Mary Eberts]

I want to emphasize just how very cost-effective the court challenges program is. There are tight budgetary proceedings. You have to really tell them how you're going to spend every nickel. There is a relatively small amount of money given at each level. If you are successful in court and receive an award of costs, you have to pay them back. They also ask you, when you apply and ask for funding, how much volunteer legal time you already have contributed and how much you are going to expect.

I've been doing these cases for years; they are done on a total shoestring. In my experience, what you get from court challenges is about a third of what it costs me as a lawyer to do this work. It only covers a third of the actual cost.

So all I can say in answer to your question is that I have extremely strong doubts that this is a budgetary measure.

[The Chair, Liberal, Yasmin Ratansi]

Thank you.

Ms. Tremblay, you have 30 seconds.

[Carole Tremblay]

In fact, the question in our minds is still the same. It's extremely difficult to reconcile. In the last two years, the current Conservative government has shown positive intentions as regards victims of violence, by amending the Criminal Code to help victims. So, it is absolutely incomprehensible that the government would have seen fit to abolish the Court Challenges Program, which has had such a favourable impact in terms of defending the rights of victims.

[The Chair, Liberal, Yasmin Ratansi]

Okay, go ahead.

[Colleen Sheppard]

This is Colleen Sheppard here. I just wanted to add one small point, and that is that I think there is some perception that somehow perhaps the program was biased because it was helping minority-language communities and individuals and groups that were socially or historically disadvantaged. In my view, it's critical to understandings of equality that a program would be precisely directed to those groups who need support because they experience discrimination. So in fact that's not bias; it just makes good sense.

[Prof. Kathleen Mahoney]

If I could add one further point too, the notion of substantive equality, which is that people are entitled to equality of results, is I think an ideological point that the government took objection to in favour of a more formal equality approach, which is sameness of treatment. The court has already judged the meaning of section 15 to be substantive equality.

So I think there are some miscomprehensions on what equality means in Canada insofar as our supreme law is concerned, and either a lack of understanding or a fundamental disagreement to roll the clock back to a time of formal equality, where people would not be advantaged by having some access to the courts because they do not have what other people have and they live in a situation of disadvantage.

[The Chair, Liberal, Yasmin Ratansi]

Thank you.

I have to give the floor back to Madame Tremblay, because somebody intervened while she was talking.

I'll give you 20 seconds now.

[Carole Tremblay]

Most people think that in criminal matters, the role of the Crown prosecutor is always to represent the victims and defend their rights. But that is purely theoretical. His or her role is to discover the truth and to show neutrality within the legal system. When victims' rights are under attack—for example, the right to preserve the confidentiality of personal information—the Crown prosecutor should not be involved. That is the work of independent counsel. That is one of the reasons why it is so important to maintain the Court Challenges Program.

[The Chair, Liberal, Yasmin Ratansi]

Thank you.

Now, the second round is going to be very tight, so please maintain time. If you want to leave by one o'clock, you'll have two minutes each.

Ms. Minna, you can ask the question for one minute and have a response for one.

[Maria Minna, Liberal, Beaches—East York, ON]

Thank you.

I can talk to some of you afterwards, but certainly you've given us great information.

I'll just go very quickly--and this may not be a fair question--to Madam Eberts and Madam Jacobs.

Madam Eberts, you said earlier that the Indian Act is basically a totally controlling piece of legislation when it comes to the lives of native women. We've also been discussing, as a committee, gender budgeting and gender analysis. To your knowledge, has there been a gender analysis done on that act, and if so, can the act itself be challenged in terms of being discriminatory against native women? Maybe it's a bit of a tall order, but maybe to get out of the piecemeal stuff....

[Mary Eberts]

The act itself has been challenged by women as a denial of women's equality. It was challenged by Jeannette Corbiere-Lavell. It was challenged by Senator Sandra Lovelace Nicholas. It has been challenged by Sharon McIvor. It's challenged by a Mohawk family from Ontario called the Perrons. There are now over 35 challenges to the Indian Act that are being brought by women, primarily in the area of Indian registration.

The court challenges program has had a tremendous amount to do with those challenges. It brought together on one occasion representatives of all these various cases so that we could share information and, in effect, cut down on our expenses. So yes.

[The Chair, Liberal, Yasmin Ratansi]

Thank you.

Madam Grewal, for two minutes.

[Nina Grewal, Conservative, Fleetwood—Port Kells, BC]

Thank you, Madam Chair.

My question is for Ms. Muyinda.

Ms. Muyinda, I would like to know more about the types of cases that have been funded by the court challenges program, and has your organization received any funding? If so, what was the nature of the cases?