Canadian Heritage Committee on Dec. 6th, 2006

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

Mr. Rainer, you quoted from a May 2006 letter from the Government of Canada to the United Nations that was boasting about this program and its uniquely Canadian character.

From that period of May to three or four months later, we've seen a major change in the government's stated position on this challenge. They seemed to take a very partisan line. It wasn't just a program that needed to be cut because of financial reasons; there seemed to be a definite desire to get rid of it for particular reasons. Mr. Baird said he didn't think it was in the interest of government to fund minority groups to challenge government.

What do you think happened in that four-month period to turn the government from being so rosy and positive about this program to being so negative?

[Rob Rainer]

I can't speculate, and I wouldn't want to speculate.

But it's interesting in looking at this issue that in fact history is repeating itself. This program was cut in 1992 by the government of the day, and there was quite a hue and outcry. I'm sure you folks are aware of this. The program was restored a short time later. The Conservative Party and the Liberal Party both promised in their election campaigns to restore funding to the court challenges program. That's in fact what happened. So history seems to be repeating itself.

I will just quote from the report that was issued from the Standing Committee on Human Rights and the Status of Disabled Persons in 1992. This is what they said about the program and the response to the cutting of it:

The observations made to the committee since the Program was cancelled have shown us the importance placed by the people of Canada on the principle of access to the courts. At no time during the 34th session of Parliament has the standing committee received so many briefs on a single subject.

The committee concluded:

—that the program played an essential role in giving Canadians access to the courts, and that it had become indispensable to the development of constitutional case law.

In the committee's view, “a lack of access to justice was too high a price to pay when compared to the modest cost of the program”.

Finally, the committee decided unanimously that the program should be retained and restructured so that it would be protected from “the vagaries of the fiscal and financial imperatives of any government in the future”.

I guess, maybe to speculate, perhaps the cost of this program seemed to outweigh the benefits, but that would seem to contradict what a similar committee concluded 14 years ago.

[The Chair, Conservative, Gary Schellenberger]

Thank you very much.

Mr. Warkentin.

[Chris Warkentin, Conservative, Peace River, AB]

Thank you, Mr. Chairman.

Thank you very much for coming, all three of you, and contributing your testimonies to this committee. We appreciate your time.

I should begin by trying to dispel some of what the previous member, Mr. Angus, was talking about. I don't believe there's an ideological gap. I don't believe there's any intent, as far as the government is concerned, to attack those who are vulnerable. In fact, you know from many of the policies and programs that we've set in place that the previous statement is completely inaccurate. Certainly, there are some concerns with the court challenges program, and the government has identified some of them. I think we'll just talk a little bit about that.

Ms. Frost, in your testimony, in your the last sentence, you said the administration should remain the same so that the program can continue to do the same type of work. Is that an accurate statement of your final sentence that you read?

[Debbie Frost]

Yes. It's my understanding.... I'll admit that until we were invited to do this presentation I didn't know a lot about the court challenges program. I did work with a lady from Regina who chaired the court challenges program. With a lot of assistance from her, we were able to put this together.

When we talked about this piece of the presentation, my understanding is that there is a panel that does the selection process when applications are submitted for court challenges. That's what we mean about the effectiveness of--

[Chris Warkentin, Conservative, Peace River, AB]

Who is this lady you were mentioning?

[Debbie Frost]

Her name was Bonnie Morton.

[Chris Warkentin, Conservative, Peace River, AB]

Okay. Thank you for that.

Your organization, obviously, has received funding in the past for court challenges. Could you guess how many times you've received funding?

[Rob Rainer]

As far as I can determine, we've been involved in two cases. One, I think, was five or six years ago, concerning third-party spending limits during elections. The second case, which was in the application round this fall, concerned a constitutional right to civil legal aid in British Columbia. That case was not brought forward because it wasn't funded due to the cancellation of the program.

[Chris Warkentin, Conservative, Peace River, AB]

Part of the hearings that we'll be engaged in here in the coming days will examine other organizations that, like you, are trying to do good work and that haven't been able to receive funding. Specifically, there's one case out of Alberta where some people were trying to work to advocate for aboriginal women's rights; they've been turned down for funding. We're going to look into possible reasons for that, and we're hoping to get some answers down the way.

Obviously, that brings up the concern as to whether it was truly a democratic, open, and transparent program. We're going to investigate that and look into those issues.

You did bring up the name of Bonnie Morton, and I know she's been quite involved in your organization. Is that correct?

[Debbie Frost]

Yes.

[Chris Warkentin, Conservative, Peace River, AB]

I understand that Bonnie Morton also plays another important role, and it's actually with the court challenges program. She sits on the board and was directly involved in some of the funding applications for organizations like your own. Is that your understanding as well?

[Debbie Frost]

Yes. I've worked with Bonnie for six years.

[Chris Warkentin, Conservative, Peace River, AB]

Yes, absolutely.

Having not met Bonnie, I wouldn't want to bring suspicion, but I would certainly ask you if, deriving from all of this information that we're now learning, it's possible that people from the outside might consider that because your organization has a person who sits on the board that administers the funds, there possibly was some additional benefit that your organization had, whereas some of these other organizations, not having a representative on the board, weren't receiving any funds?

[Rob Rainer]

My understanding is that the court challenges program of Canada is an arm's-length, not-for-profit organization. I'm assuming, and I'm confident, that there are conflict of interest guidelines built into its charter, and that any person sitting on the board would need to declare whatever conflict of interest they'd have relative to cases coming before it. This could well be an example.

[Chris Warkentin, Conservative, Peace River, AB]

And that may be, but we're not sure of that. We've heard from a number of people who testified that there are some concerns about these apparent conflicts of interest, and certainly there is some concern with that. That leads us to the whole discussion of, if all court cases can't be funded through this program—all to do good work and all to bring important cases to the table—how democratic is it? Are we ensuring that some people have more access to the courts than other people? Obviously we wouldn't want that to be the case. Can you see that some people would take some issue with that?

[Rob Rainer]

That's a good question. Going back, if I can find it in my notes here, the original premise was that cases funded by the program had to be of substantial importance, have legal merit, and affect more than one person. I suppose one could add to this that they need to be in some way setting a precedent because you can't hear every single possible case. Otherwise it would be a multi-billion-dollar program.

[Chris Warkentin, Conservative, Peace River, AB]

Absolutely, but even in these precedent-setting applications, they haven't necessarily received funding in those circumstances.

[Rob Rainer]

I think it just begs the question then of why not increase the funding for the program? I don't know what the overall budget is, but presumably if it's not sufficient to do justice to the cases that should be heard, then I think it points to a funding priority decision of the government.

[The Chair, Conservative, Gary Schellenberger]

Mr. Warkentin, you've gone over time here.

Mr. Scarpaleggia.

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

Thank you, Mr. Chair.

There have been insinuations that somehow this program benefits Liberal lawyers. It came up in the previous hour with other witnesses. The question was posed to them, were there lawyers who were being funded through the program who were Liberals? They said no, that they didn't know what their political stripe was. Do you have Liberal lawyers working with you to fight the government?

[Rob Rainer]

We have no lawyers who work with us. We don't have sufficient funding to cover off steady legal counsel. In fact, we're actually looking for pro bono legal access.

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

When you've been funded in the past, have you used lawyers?

[Rob Rainer]

Yes, a lawyer would have been retained through whatever funding.

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

But you don't know if they were Liberal, NDP?