Canadian Heritage Committee on Dec. 6th, 2006

[Murielle Gagné-Ouellette]

There are committees established under the Court Challenges Program which appraise these cases. For our part, we do not know which applications are rejected by the committees. We always hope that we can advance language rights, that our case is one of the best, that it will help us make progress and that our efforts to advance our rights will not be curtailed.

We always try to bring forward the best cases. In fact, as was said earlier, the total budget of the Court Challenges Program is only $5 million, which does not allow all cases to go forward. The program deals strictly with cases involving language rights and matters of equality.

Anglophones in this country make up the majority, and we still have a lot more to do than they do.

[Ed Fast, Conservative, Abbotsford, BC]

Thank you, Mr. Chair.

[The Chair, Conservative, Gary Schellenberger]

Thank you.

I thank our witnesses. I wish we had a longer time, but we do have more witnesses, and we've set this up to be one hour.

I'm sorry we were a little late; we had the vote after our question period.

Thank you very much for your answers and your presentations.

We'll take a two-minute break. Thank you.

[The Chair, Conservative, Gary Schellenberger]

We'll call this next session of this meeting to order. I welcome our witnesses here today.

For anyone who might be questioning, please realize that Mr. Simser speaks with sign language. So if your questions are asked, it might take just a minute for a response, because his signer will have to take—especially in French—the translation first.

Again, thank you so much for coming here today. Who would like to go first with the presentation?

Thank you, Ms. Frost.

[Debbie Frost, President, National Anti-Poverty Organization]

Thank you.

We didn't have a chance to get a briefing out to the committee, but we do have a package here; we brought 25 of them that can be passed around. It also includes my speaking notes.

First, I would like to thank you for the opportunity to participate in this hearing to discuss the court challenges program. My name is Debbie Frost. I'm the president of the National Anti-Poverty Organization. With me is Rob Rainer, our executive director.

NAPO is a non-profit, non-partisan organization that represents the interests of low-income people across Canada. NAPO has been working for 35 years to give low-income people in Canada a powerful voice to speak up on social and economic policies and decisions that affect them and future generations. A unique aspect of our group is that all of our board members are individuals now living in or who have once lived in low-income circumstances.

We are here to express our concern over the loss of the funding to the court challenges program. This program was the only way most people, particularly the poor, could access courts to protect their rights under the Canadian Charter of Rights and Freedoms. The only way we have of ensuring that our constitutional rights are protected is through the courts. We need funding to do this, and funding through this program. Without funding to access the courts, we have thus lost a measure of our access to democracy. Today, the only people who have the ability to fully realize their democratic and constitutional rights are those with the money to purchase such rights.

Over the last few months, the people of Canada have been wrongly informed about the court challenges program. It has been stated that the non-profit body governing the program has been secretive with cases it funds. However, the only time this body could not release information on cases being funded was when there was a client-lawyer privilege. This is no different from any other legal situation where there is a client-lawyer privilege--for example, that associated with legal aid. Once a court challenges case goes to court, it is on public record, and then the court challenges program will also release the information. Court challenges annual reports have been available to the government and to the public, and NAPO has also made them available through their website.

Over the years, the court challenges program has funded many cases that have benefited not only many low-income people but also disabled, women, visible minorities, aboriginal people, gays and lesbians, children, and single parents. The court challenges program funds equality litigation for low-income people, but it also provides litigation funding for linguistic rights. Without this funding we can no longer protect equality and linguistic rights in this country.

The Charter of Rights and Freedoms was a guaranteed protection against policies, regulations, and laws that violated our constitutional rights. By taking away the funding from this program, it takes away protection for the people of Canada. This leaves the Canadian Charter of Rights and Freedoms a weak document with little or no value to the people of Canada.

A new three-year funding contribution agreement had been signed for the court challenges program, which would have taken the program to 2009. At that time, the program would have been subject to another renewed funding agreement. We question the security of any program when the government cannot keep its word. How can the government enter into an agreement, renege on it, and then wonder why there is lack of public trust in government? What organization would trust government after this, with no communication to the court challenges group prior to reneging on the funding? It's pretty sad that any non-profit has to find out through a national announcement, rather than through a private conversation, that their funding has been cut.

Within groups trying to address poverty in Canada, there is a lot of talk about how government bashes the poor. The cancellation of the court challenges program, in our view, is another example of poor-bashing.

Our recommendation to this committee is that NAPO recommends that the funding for the court challenges program be restored as soon as possible, according to the signed contribution agreement previously mentioned. We also recommend that the structure of the non-profit body administering the program remain the same so that the program can continue to function efficiently and effectively, as it has in the past.

Thank you. We look forward to the discussion.

[The Chair, Conservative, Gary Schellenberger]

Thank you.

Is there going to be a presentation by Mr. Simser?

[Scott Simser, Barrister and Solicitor, Simser Consulting, Canadian Association of the Deaf]

Yes, that's correct. Did you want me to present now?

[The Chair, Conservative, Gary Schellenberger]

Yes, please.

[Scott Simser]

Good afternoon. I represent the Canadian Association of the Deaf, having acted for it in its successful case against the Government of Canada, whereby we won the right to have sign language interpreters when accessing government. This case was in the media all across the country. It was on the front page of the The Globe and Mail and was the leading news item on national news for part of the day as well. This meant deaf and hard-of-hearing Canadians were no longer being treated like second-class citizens.

That case was funded by the court challenges program, so you can see how important the court challenges program is to people with disabilities. Hence, we feel the court challenges program is useful and, contrary to media reports, not only for special interest groups. How could one consider people with disabilities as a special interest group? People with disabilities are among the most unemployed, most poor, and most disadvantaged people in Canada. Moreover, people with disabilities didn't ask to be disabled. All we're trying to do is overcome our barriers. In the special case of deaf persons, we feel we are a community with a unique language. If the court challenges program returns in its present form, I do have some comments on how to improve the program, and they are as follows.

First, increase the maximum funding allocated from $60,000 to $100,000. Since the cases funded by court challenges inevitably involve the charter, these cases can often be complex and cannot be litigated effectively for under $60,000. Remember that a large chunk of the money often goes to expert witness fees or photocopying fees for huge volumes of court documents. If others feel the court challenges program gets enough money as it is, fine. Then reduce the number of cases funded. But I strongly recommend that once a case is approved, it should not be severally curtailed by a lack of funding.

Secondly, reduce the holdback from 25% to 10%. It is often hard for the lawyer to keep litigating once he reaches the 25% holdback, and it is demoralizing. The lawyer may end up not getting paid for a year or two, while attempting to ensure that the case ends in a trial. The court challenges program should trust that the lawyer and the client are dedicated to finishing the case and should not impose such a punitive holdback. Why is the court challenges program holding back 25% if the government standard is 10%? Examples would be Industry Canada's contributions program for non-profit consumer and voluntary organizations; Social Development's contributions program for early learning projects; Canadian Heritage's contributions program to promote RESPs; and Human Resources Development's contributions program called the opportunities fund for persons with disabilities.

Thirdly, speed up payments and make them much quicker. It takes six to eight weeks for the court challenges program to write a cheque to the lawyer after being presented with an invoice. Surely there should not be so much bureaucracy that they cannot write a simple cheque in less than three weeks. I do agree with accountability, but accountability does not have to take forever to accomplish.

Fourthly, increase the number of meetings every year held by the panel of lawyers who approve new projects. Currently the panel meets only every three months on average. Thus, people who suddenly have an urgent court case may find themselves waiting three months to find out if they can fund a lawyer for an important case. For example, many court cases must be started within thirty days after a certain event occurs, such as rejection of a government benefit to a taxpayer. I would recommend that the panel meet every month. This would also speed up the bureaucracy that exists.

Thank you very much.

[The Chair, Conservative, Gary Schellenberger]

Thank you.

Mr. Bélanger or Mr. Simms.

[Mauril Bélanger, Liberal, Ottawa—Vanier, ON]

If I may, Mr. Simms, there was a matter raised in the last session, Mr. Chairman, about the Quigley matter. For the benefit of the people at the table and those who may be listening, it's important that we understand the references.

The Quigley matter was a case involving the House of Commons. Mr. Quigley is a resident of Riverside–Albert, near Moncton. He could not listen to the debates in his own language, English, but wanted to. Basically, the case ended up demonstrating that the House had an obligation, under the Official Languages Act, to make sure its communications were in both languages. That was the outcome.

Mr. Quigley did seek support and could not get it for internal reasons, but he was not seeking a restrictive interpretation of the law. Au contraire, he was looking for a more generous interpretation of the law, which I gladly supported. And if anybody wants to contribute any money to help pay some of his legal bills, they're not all paid yet.

[The Chair, Conservative, Gary Schellenberger]

Thank you, Mr. Bélanger.

Mr. Simms.

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

Thank you, Mr. Chair.

I want to thank our special guests, indeed, for coming.

I'm going to start the questioning in the way it was done in the last round, with a question on consultations. To what extent were consultations made with your group, and yours as well, Mr. Simser, about the cuts we have just witnessed?

[Debbie Frost]

To what extent were consultations made with our group?

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

I would judge by the expression on your face that it was not to a great extent.

[Debbie Frost]

No.

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

All right.

Was there any contact made regarding to the evaluation of the program before the cuts were made or any information required from you by the current government?

[Debbie Frost]

There was none that I'm aware of. It just seemed that all of a sudden there was an announcement that all these cuts were being made.

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

Mr. Simser.

[Scott Simser]

There was a similar situation. The cuts were made before the deaf community was made aware.

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

I want to talk about the poverty situation now. Mr. Simser made a good presentation of it, a good illustration of how the program was a benefit to them. I need a good illustration of how a poverty group would access the resources provided by the court challenges program. Perhaps you know of an example, Mr. Rainer.

[Rob Rainer, Executive Director, National Anti-Poverty Organization]

Just for clarification, I've only joined NAPO in the past month, so I'm on a steep learning curve on this issue and on other things.

One thing I have found out is that there is a current case that has not yet gone to trial, which challenges the clawback of the national child benefit supplement, which is a federal benefit given to families with children. My understanding is that all jurisdictions, save one or two, are clawing back the same amount that is given to the recipients of that benefit. So if I'm a parent and I'm receiving $100 now from the federal government in terms of the national child benefit supplement, that amount can be taken off other payments I may receive from, for example, the Province of British Columbia.

So where you have a situation of one or two jurisdictions not clawing back the supplement when others are clawing it back, right away you have a pretty serious situation of inequality.

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

Other federal payments would be clawed back as well--is that correct?--and not just, say, from a particular province or jurisdiction?

[Rob Rainer]

I'm not sure. What I do know is that one or two jurisdictions--I'm not sure which ones--have elected not to claw back the supplement that is given to families. So this is setting up a situation of inequality, and there is a challenge on that that has not yet gone to trial. I think that's a good example of a situation of inequality that needs to be heard out. There needs to be a ruling, and this program ostensibly has supported that particular case that hasn't come to trial yet.

I just want to add, in response to a previous question we heard--I think it was your question--that I understand in May 2006 the current government appeared before a UN committee in Geneva to defend its commitment to human rights in Canada, and it actually described the court challenges program as evidence of this commitment at the time. It indicates that the government wrote to the UN committee--and I'm just quoting here:

The Court Challenges Program (CCP) provides funding for test cases of national significance in order to clarify the understanding of the rights of official language minority communities and the equality rights of disadvantaged groups—

It is not possible for the government to support all court challenges, but this uniquely Canadian program has been successful in supporting a number of important court cases that have had direct impacts on the implementation of linguistic and equality rights in Canada. A recent evaluation

--and there have been three, I understand, since 1994--

found that there remain dimensions of the constitutional provisions currently covered by the CCP that still require clarification and the current program was extended to March 2009.

So if that letter was in fact written in May 2006 and the announcement for the cancellation of the program was a few months later, it would seem there was a very narrow window indeed in which to consult with the groups that might be affected by it.

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

Thank you. That's a very interesting point, Mr. Rainer. Are you finished with that point?