Canadian Heritage Committee on Dec. 13th, 2006

[The Chair, Conservative, Gary Schellenberger]

I call to order meeting 29 of the Standing Committee on Canadian Heritage.

Today we do have some witnesses here, but prior to entertaining the witnesses, I've been requested by Mr. Bélanger that we might do just a little committee business first and deal with his motion from December 11 that representatives of the court challenges program be invited to appear before the Standing Committee on Canadian Heritage.

Before we deal with that, there's also been another request from an individual just today to come before this committee. I was wondering if it could be done on the same day. That would be about the only way we could handle this other request. I'm just looking for some direction on this.

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

Mr. Chairman, I don't know who the other one is, so I'm not prepared to blindly say yea or nay. All the other witnesses were suggestions of members of the committee we had agreed upon. Not knowing who this one is, I find it difficult to ask members to agree. Perhaps notice should be given as to whether it's a member of the committee who is making that recommendation and we can dispose of it.

[The Chair, Conservative, Gary Schellenberger]

Okay. It's from a Maria York, president, Canadian Council for the Rights of Injured Workers. That's who has made the request through the clerk and myself here today.

Again, how do you want me to handle that?

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

Mr. Chairman, I put a motion forward with due notice. My sense is—and I didn't think we would be getting into a debate here—that it would be important that a meeting be given to the court challenges program. The reason I put forward this motion is there have been a number of things said that I think need to be cleared up, and they, if anyone, would be in a position to answer some of the questions that have arisen. That's why I put the motion forward, so that we can have a full picture.

[The Chair, Conservative, Gary Schellenberger]

Okay.

Mr. Abbott.

[Jim Abbott, Conservative, Kootenay—Columbia, BC]

As a point of clarification, are we talking about officials from the department, or are we talking about people who were on the committee?

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

I'm saying representatives of the court challenges program.

[Jim Abbott, Conservative, Kootenay—Columbia, BC]

But what does that mean?

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

That is not the departmental officials, obviously, because the court challenges program is a stand-alone, arm's-length program with its own board. They will determine who they wish to have as their representatives.

[Jim Abbott, Conservative, Kootenay—Columbia, BC]

Good.

Thank you, Chair.

[The Chair, Conservative, Gary Schellenberger]

We will vote on Mr. Bélanger's motion that representatives of the court challenges program be invited to appear before the Standing Committee on Canadian Heritage. That meeting then would be Tuesday, January 30, 2007.

(Motion agreed to on division)

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

Thank you, Mr. Chairman.

[The Chair, Conservative, Gary Schellenberger]

Welcome to our witnesses here today, and thank you for coming. I don't know who will go first, but I will go by order.

Mr. Kevin Rollason, would you like to make your presentation, sir, please?

[Kevin Rollason, As an Individual]

Thank you very much for allowing my daughter and myself to appear before this committee.

I believe it's important for politicians to look into the faces of the people who are affected by the laws this country passes. That's why my family paid for my daughter to come down here. We've since found we may have a little bit of a refund, which is wonderful.

Unlike the other people who have given submissions before you, I'm not the head or representative of a group or organization that has been helped or is being helped by the court challenges of Canada program. I'm simply here as the father of a child, and not just any child; as you can see, I'm the parent of nine-year old Mary Rollason-MacAulay, a child who was born with multiple disabilities and medical issues, a child who's only alive today because of doctors and her own strong will to live. She's a child who has been helped by the court challenges of Canada program.

It is for that reason that both Mary and I have travelled all the way from Winnipeg to Ottawa on behalf of our family and all the families with children with disabilities to ask for your support in continuing to fund and keep in existence the court challenges of Canada program.

When I was denied the bulk of my parental leave benefits in 1998, I was forced to go back to work after only receiving four weeks of benefits through employment insurance. What the court challenges program enabled our family to do was to hire a lawyer to challenge the validity of the federal legislation under section 15 of the Charter of Rights and Freedoms on the basis of age, disability, and family status. The legislated changes to the Unemployment Insurance Act at that time resulted in the loss of the bulk of my parental leave at the time when it was most needed, when Mary came home from hospital.

Instead of receiving my fifteen weeks of benefits when my severely disabled child came home from hospital at ten and a half months of age, the new Employment Insurance Act limited me to taking that time within a year of her birth, resulting in the loss of eleven weeks of benefits. I had, on the advice of medical professionals, waited until Mary got home from the hospital to take my leave because that was when it was deemed to be when Mary would need it the most.

Our constitutional challenge against the employment insurance program was successful, but without the help of funding from the court challenges program, our constitutional challenge against the act would most likely not have been successful. We not only were successful in our challenge on all three grounds of discrimination, but just as important, as a result of the challenge being launched the federal government of the day amended the act prior to the hearing.

Last September, in announcing the plan to slash $1 billion from the federal budget, of which cutting the court challenges program represented $5.6 million of the savings, Treasury Board President John Baird was quoted in the media as saying the program wasn't meeting the priorities of Canadians or providing value for money. As well, in talking specifically about the court challenges program, Mr. Baird said the federal government was no longer interested in funding opposition to legislation it believes is right.

I ask all of you to look at Mary and along with her all of the Marys with disabilities across the country, whether they are children or adults, and I ask you to ask yourselves whether her constitutional rights aren't meeting the priorities of Canadians, whether fighting the discrimination against Mary and others with disabilities is not providing value for money, and above all, whether any of you really believe that there will never be a future law passed that will not discriminate against Mary and others with disabilities across the country.

With our family's situation, it didn't matter that our situation and arguments actually persuaded the federal government to change the law to cover people like us before we had our day in court. Even after the government amended the legislation, because it wasn't retroactive, it still continued to fight our challenge to the very end. That's why Canadians needs the court challenges program.

Do I really think the federal government purposely meant to discriminate against newborns with disabilities? No. Do I think the federal government purposely changed the law to discriminate against newborns with disabilities? No. But do I think it's extremely hard for politicians and bureaucrats to know all of the ramifications that may come from their decisions to amend or create laws? Yes. As the umpire who heard our case said in his decision, and I quote:

[The commission]...by oversight or otherwise, strayed from its legislative objectives. This, in the circumstances, is not surprising. Legislating in the area of social legislation is both difficult and challenging. Court challenges multiply; pressure groups and social changes place considerable pressure and strain not only on Government but also upon Senior Public Servants who struggle to keep abreast of all developments.

It's not wrong for politicians and bureaucrats to admit mistakes and infringements on constitutional rights. Unfortunately, in our case the government never did admit that what they did was wrong, thus forcing us to proceed with the challenge. What is wrong is not to allow individual Canadians who have had their rights infringed to be able to make and mount a reasonable and meaningful constitutional challenge in a court. That's especially so when many of us are individuals who are still living with the discrimination. We are trying to fight for our constitutional rights, while still carrying on with our lives.

Mary's needs did not end the day she was released from hospital when she was ten and a half months old. They didn't end when she turned two, and they certainly haven't ended now.

If I'd had to continue the constitutional challenge by myself without the lawyer that I was able to hire through funding by the court challenges program, every minute, every day, every week that I would have had to spend to mount that challenge would have been time taken away from my daughter and our fight, literally, to keep her alive. The court challenges program put me on equal footing with the federal government. Whether I was with a lawyer or not, the federal government had a team of lawyers fighting against me, bringing to bear the full resources of the state. What individual without legal training could possibly have made a meaningful defence of the issue?

Even with a lawyer, the legal battles waged so long, as many do. Mary was in elementary school, enrolled in grade one, when the decision was finally made that the government's employment insurance program had discriminated against my daughter and me through her disability. But the length of the legal battle didn't bother us, because it was never our sole purpose to fight for just our family's rights. As we have discovered during our nine years of being intimately involved with disability issues, when an issue affects one person, there are many more who are also affected.

In our family, Mary and I were not the only ones affected by the employment insurance decision. Because I could not be home but had to work, it meant my wife actually bore the brunt of the EI decision. At that time, Mary was connected by a tube to a feeding machine 24 hours a day, seven days a week, and there were numerous times during the day when she could have aspirated into her lungs and she could have died. My wife and I were taught how to do CPR and were given a portable suction machine. Mary could not be left alone any minute of the day or night. Someone had to be awake with her 24 hours a day. Our eventual success and our eventual repayment to compensate me for the benefits lost was still put to good use earlier this year when Mary required more open-heart surgery in Toronto and my wife and I were off work for 11 weeks.

From where we sit, we believe the court challenges program has become a political football, subject to the ideological whims of the political party in government, but the rights of Canadians can be infringed no matter which party is in power. It was actually a Liberal government that changed the unemployment insurance law that had caused my family to be discriminated against. It could just as easily have been a Conservative government, an NDP government, or a motion originated by the Bloc Québécois. To put it bluntly, discrimination can originate anywhere in the political spectrum.

In our situation, we were fighting for 11 weeks of parental leave. In terms of benefits, I lost about $6,000. On an individual basis, it would have made no sense for us to pay a lawyer more than $70,000 to fight the discrimination, unless we were independently wealthy or crazy, and I can assure you we are neither. But as with many other issues of disability, we knew there were other Marys out there, children who were born with such potentially fatal medical problems that their parents should have the right to choose whether they use the benefits while the child is still in hospital or at home. That's the beauty of the court challenges program: they only take on constitutional challenges that can affect many people across the land. As the umpire who decided our case, who didn't know we had funding through the court challenges program, said:

[Rollason] brought a deficiency to the attention of Parliament which, while it has since been remedied, he should not have to bear the costs of doing so in order to obtain the benefits to which he was entitled.

Unless this program is reinstated and retained, constitutional challenges will be something only the richest in society can afford. That's wrong. Discrimination cuts across all classes and incomes. I never would have dreamt I'd ever have my rights infringed upon. Our family simply became the victim of discrimination because a child was born and she had disabilities. It's sad to know that the future parents of a disabled child, or anybody with disabilities, may not have the court challenges program to turn to unless you help keep it. Like me, other Canadians could only be the birth of a child away from discrimination. Don't take away the federal program that helped us and all the Canadians who are in our situation, both myself and my daughter Mary and my family.

Thank you for your time and your attention.

I'm assuming you might have copies. There's also a brief from my wife, Gail MacAulay, that should be part of your package. I'd urge you all to read it. It's from mummy's point of view, and she's pretty straight to the point as to just what the brunt was that she faced when I was away.

Thank you.

[The Chair, Conservative, Gary Schellenberger]

Great. Thank you very much.

Our next presentation is from Louise Aucoin.

[Louise Aucoin, President, Federation of Associations of French-speaking Jurists of Common Law]

Good morning, Mr. Chairman and members of the committee.

My name is Louise Aucoin and I am the President of the Federation of Associations of French-speaking Jurists of common law, the FAFSJC.

I thank this committee for its invitation to speak to you about the Court Challenges Program of Canada.

The FAFSJC includes seven associations of French-speaking jurists and represents approximately 1,200 jurists. The FAFSJC promotes and defends the language rights of francophone minorities in the area of Canadian justice. The FAFSJC is also a member of the Fédération des communautés francophones et acadienne du Canada, the FCFA.

Firstly, the FAFSJC wishes to make clear that it fully supports the statements made in the written submission tabled last week by the FCFA, and in particular those made on the decisive role that the CCP plays in fostering the development of francophone minorities as well as the full recognition and promotion of the French language in Canadian society. In fact, access to justice in French and judicial bilingualism has progressed significantly, thanks to court challenges supported by the CCP, such as the Beaulac and Donnie Doucet cases. By abolishing CCP funding, we run the risk of stagnating, at best, or losing ground in the area of language rights, at worse. This does not augur well for part VII of the Official Languages Act nor for improving access to justice in French outside Quebec.

The FAFSJC is deeply concerned over the impact abolishing funding will have on the ability of francophone and Acadian communities to defend their constitutional rights. In fact, we are already hearing about certain francophone groups and individuals who no longer have the means to defend their language rights before the courts. Their situation can be summarized as follows: no funding means no access, means no defence of language rights, and less progress made in their respective fields. In fact, the FAFSJC has already fallen victim to the situation, because for financial reasons, we will be unable to even think about intervening in the Paulin case, which will probably be brought before the Supreme Court of Canada in 2007. The case deals with the role of the RCMP in New Brunswick and will most likely lead to discussion on the RCMP's role throughout Canada.

Abolishing the Court Challenges Program also diminishes the benefits of Canadian citizenship, particularly for linguistic minorities in Canada. Why? Because a francophone who chooses to live in a province where he will be a minority may be forced to pay out-of-pocket in order to make sure that his constitutional language rights are respected. In fact, this is already costing many people hundreds of thousands of dollars. A minority francophone may have language rights, on condition that he is willing to pay to have them respected, which may cost hundreds of thousands of dollars, or whatever it costs to have his case heard before the courts.

In addition to giving preference to Quebec francophone groups, these measures do nothing to foster respect for francophone language rights throughout the entire country. On the contrary, the elimination of CCP funding is giving francophone minorities the following message: it's your language, it's your problem, if you want your language rights to be protected you will have to pay for it. The issue is not considered a matter of public interest which is deserving of federal funding.

While the abolition of CCP funding means that some groups or individuals will not be receiving funds, the FAFSJC endorses broadening the mandate of the CCP so long as this action is not detrimental to the disadvantaged and linguistic minorities, as Mr. Rollason said so eloquently. However, it is not by abolishing the disadvantaged and linguistic minorities' access to justice that such a debate will be held.

If abolishing CCP funding is based on the principle that the federal government should not contribute to lawsuits brought against itself, then the tax system, among other things, should also be reformed. For example, the media can claim business expenses and thus reduce their taxes in constitutional cases against the federal government. Therefore, if the federal government is already indirectly subsidizing the protection of the constitutional rights of certain corporations through the tax system, why shouldn't the government also assist Canadian citizens, including francophone minorities, to protect their rights?

The FAFSJC does not believe that the benefits of Canadian citizenship should accrue exclusively to the well-off and to francophone and anglophone majorities.

Thank you. I would be pleased to answer your questions.

[The Chair, Conservative, Gary Schellenberger]

Thank you.

Ms. Tie is next.

[Chantal Tie, Member, Law Program Committee, Women's Legal Education and Action Fund]

My name is Chantal Tie. Thank you very much for inviting me here today. I am here as a representative of LEAF, the Women’s Legal Education and Action Fund. We have historically been a significant beneficiary of the court challenges funds.

I sat for seven years on the national legal committee of LEAF, which determines the litigation, applies for funding, and determines the litigation strategy. I was then nominated by LEAF to run for the board of directors of the court challenges program. I took a leave from the national legal committee and served for seven years on the board of the court challenges program, four of those years as chairman of the board. I am the most recent past chair of the board of directors of the court challenges program, and I am now recently back on the national legal committee of LEAF.

I appeared before House of Commons Standing Committee on Justice and Human Rights about two weeks ago, following a presentation by the Canadian Taxpayers Federation on the court challenges program, and was astonished to hear that group say that eliminating the court challenges program was promoting equality because it levelled the playing field. I'd like to address my comments to that comment, which I must say astounded me.

It astounded me for a number of reasons. Primarily, in essence, it's equality with a vengeance, as the Supreme Court of Canada has said on occasion. It also presumes that treating everyone the same is what equality is all about. That is, quite frankly, an outdated notion, and one that was prevalent in the 1960s. It is a thinking that takes us back forty years, in complete ignorance of the developments in human rights and equality legislation in the past forty years. It is a vision of equality that says that when you treat everyone the same, that's all you need to do. Treating everyone the same is called “formal equality”. Unfortunately, everyone is not similarly situated. One must look at the impact of the decisions upon affected people.

That statement by the Canadian Taxpayers Federation, which seemed to find favour with government representatives, left me with two possible conclusions. Either those members who supported that decision or that approach clearly have no understanding of what equality is and have no knowledge of development in equality jurisprudence and thinking in the last forty years, or they do understand the difference and have deliberately engaged in doublespeak to confuse the issues that are before us and, in effect, merely disagree with the vision.

What is the vision? The vision is not some invention of LEAF or the court challenges program, although we do admit that we may have contributed toward the building of that vision. It is the vision that the Supreme Court of Canada has said our charter, which is the law of this land, mandates. It is a substantive equality. If you apply that vision to the elimination of this program, it cannot be justified under any definition of equality.

What does this program do? I think Mr. Rollason's comments were very apt. He thought it was important to show you the face of someone who has benefited from the court challenges program. The court challenges program brings the faces and the voices of disenfranchised, marginalized, and discriminated-against people in this country before the court. Unfortunately, judges labour under the same handicap that parliamentarians may labour under as well, and that is that they do not have the lived experience of disadvantage that needs to come before the courts when the courts are adjudicating rights under the charter.

It is absolutely essential that those voices be heard, and the court challenges program provides extremely modest funding to groups who are identified as disadvantaged in our charter, so that their voices can be heard. Without their voices, we will have a thin and impoverished view of equality. Unfortunately, we may end up with a view of equality from back in the 1960s that says that treating everyone the same is equality.

It's also extremely important that the current structure, or a structure very similar to the current structure of the court challenges program, be maintained. That structure gives the disadvantaged groups themselves significant say in the priorities and the direction and allocation of funds, on a test-case basis, to litigation.

People who suffer disadvantage must play an important and active role in remedying that disadvantage. Eliminating funding to the program does none of those things. It silences voices; it makes our Supreme Court a bastion of the rich and the privileged, not a defender of the rights of the disadvantaged.

That's not what our charter says. Our charter says that we are to have those rights. If we have no access to the courts, we will not enjoy any of those rights.

Thank you.

[The Chair, Conservative, Gary Schellenberger]

Thank you very much.

Mr. Bélanger.

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

Thank you, Mr. Chairman.

Thank you very much, all of you, for your presentations. Merci beaucoup.

I have a very quick question that I've asked of all of our witnesses who have had support from the court challenges program. In determining the choice of your lawyers, once you had funding, was the political affiliation of these lawyers a matter of any consideration?

[Chantal Tie]

I can speak for LEAF. We don't even know the political affiliation of our lawyers. It is completely immaterial.

The way we choose our lawyers, the way we choose our cases, is very much in line with the contribution agreement for the court challenges program itself, which is that the position we take must advance women's equality. That's not an ideological concept; that is, we start out, and our whole process involves consultations with the groups who are affected—academic consultations, subcommittees with academics, people who have the lived experience, and litigators.

It's out of that process that we decide what is in the economic interests of women, what is in their physical security interests. We don't start with a preconceived notion of what equality is or what position we should take. We look at the facts and ask what best helps women get economic security and physical security.

And when we choose our lawyers, the funding that the court challenges program provides is modest.

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

I only have five minutes.

[Chantal Tie]

Oh, sorry.

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

I'm sorry. I kept my question very short. Perhaps the answers could be succinct as well.

Madame Aucoin.

[Louise Aucoin]

Quite frankly, there are not many practising jurists who specialize in linguistic rights. Lawyers who work in this field do so because they are passionate about the issue. I have no idea of their political affiliation.