Evidence of meeting #28 for Justice and Human Rights in the 39th Parliament, 1st session. (The original version is on Parliament’s site, as are the minutes.) The winning word was work.
A recording is available from Parliament.
Conservative
Liberal
Conservative
The Chair Conservative Art Hanger
So be it.
We have Mr. Ménard's motion as well, at the end of this committee meeting. We'll have to deal with it quickly.
I will call upon each witness to testify according to the....
Mr. Godin.
NDP
Yvon Godin NDP Acadie—Bathurst, NB
Point of order. There should be a rule, and I don't know what the rule is at this committee, that there should be no argument between.... It should come directly to us to raise questions.
Conservative
The Chair Conservative Art Hanger
I don't see any argument. I see a point of clarification that Mr. Le Bouthillier wanted to correct as Mr. Carpay presented, and he's entitled to do that.
Conservative
The Chair Conservative Art Hanger
Mr. Godin, stick around for a while, and you might see a few new things.
NDP
Conservative
The Chair Conservative Art Hanger
Yes, we had a good sound debate.
I would ask Mr. John Williamson to be the first to present. I might ask for the presenters to keep their comments as tight as possible, five to six minutes, seven minutes at the maximum, if you would.
John Williamson Federal Director, Canadian Taxpayers Federation
Thank you. I'll get right to my remarks. And I appreciate being here today.
My name is John Williamson. I'm with the Canadian Taxpayers Federation.
Abolishing the court challenges program is good news, not only for taxpayers but for equality.
Liberal
Derek Lee Liberal Scarborough—Rouge River, ON
Excuse me, on a point of order.
I certainly support the chair in his remarks, but there's a flip side to this coin. If we ask you to go too quickly, the translators will ask to please slow it down.
Federal Director, Canadian Taxpayers Federation
Thank you, I appreciate that.
In the past twenty years, millions of tax dollars have been given to special interest groups to advance their politically correct causes through the courts. Groups like EGALE or LEAF have received hundreds of thousands of tax dollars to advocate.
Not all tax dollars flowed through the CCP, but these were some of the interests they advocated for: that people are entitled to collect welfare, regardless of the income earned by their common-law spouse residing in the same house, and by that I mean you get a welfare cheque even if you're living with someone who's earning a decent income; that non-citizens should acquire the opportunity to avoid deportation by giving birth to children in Canada; that a pregnant woman has the right to continue harming her unborn child by sniffing glue; that more tax dollars should be spent on legal aid and on health services for non-citizens; that physical fitness standards for firefighters should be lowered to accommodate women; that freedom of political speech should be restricted in the name of equality and Canadian values; that employment insurance benefits should be extended to people who have worked fewer than 700 hours in the preceding one-year qualifying period; that the state should prohibit prayer and peaceful protest near abortion clinics; that legally owned guns play a significant role in perpetrating violence against women and children; that the term spouse need not refer to a member of the opposite sex.
Through their tax dollars, all Canadians pay to advance LEAF's public policy agenda, whether they agree with it or not. Eliminating the CCP puts all groups on an equal footing, at liberty to raise funds for their own purposes through their own supporters.
In addition to LEAF, other groups have also received tax dollars through the court challenges program to argue that prisoners convicted of serious crimes should have the right to vote; that receiving welfare payments is a constitutional right; in support of the Canada Elections Act restricting us on citizen's advocacy that is independent of political parties—that is our infamous Harper versus Canada; that it should be a criminal offence for parents to spank their children; that a person convicted of importing large quantities of cocaine into Canada should receive a lighter sentence if they are black single mothers; that sexual orientation is akin to race, gender, and religion and should be added to human rights legislation; that a Guatemalan citizen with a criminal record deemed to be a danger to the public should have an automatic right to appeal a deportation decision; that marriage should be redefined to include same-sex couples.
Some Canadians will certainly agree with some of these public policies, but is it right that all Canadians, including those who disagree, are required to pay for this type of advocacy? How would LEAF supporters feel if their tax dollars were used for court challenges to recognize the rights of unborn children? How would a member of the Canadian Labour Congress, a recipient of tax dollars through the CCP, feel if tax dollars paid for court advocacy against compulsory union membership? Individuals and organizations have every right to use the courts to press for public policy change, but requiring people to pay for advocacy with which they disagree does nothing to a person's conscience.
Equality demands that government refrain from spending tax dollars to favour one side on any controversial issue. Ending the court challenges program creates a fair and level playing field for all Canadians, whatever their views might be.
I thank you, Mr. Chairman.
Conservative
The Chair Conservative Art Hanger
Thank you, Mr. Williamson.
Next, from the the Canadian Constitution Foundation, we have Mr. John Carpay.
Executive Directeur, Canadian Constitution Foundation
Good afternoon, Mr. Chair, ladies and gentlemen members. I was informed, roughly a week or 10 days ago, that I was going to speak on this subject today. I would have liked to have a little more time to prepare what I'm going to say today.
As I mentioned previously, our foundation arose in 2002 in support of constitutional litigation launched by James Robinson in British Columbia, who challenged and continues to challenge the Nisga'a agreement as violating his equality rights and other constitutional rights as a Canadian. You might be interested, or perhaps surprised, to learn that our foundation actually applied to the court challenges program for funding in 2003. That was before I came on board as executive director. I don't know if I would have made the same decision or not, but that's irrelevant. In 2003 we applied for funding. We said we'd like some money to support this court challenge of Nisga'a Indian Chief Robinson, Sga-inisim Simaugit, to pursue his section 15 equality rights. We were denied funding by the court challenges program because our particular litigation did not fit the particular ideology and particular vision of the court challenges program.
In spite of that denial, we were still able to raise money from Canadians who support Chief Mountain's challenge, and this litigation is still ongoing because Canadians have been persuaded of the justice of Chief Mountain's cause, and they have voluntarily contributed toward that lawsuit. I've heard the argument that the court challenges program should receive tax dollars because it promotes justice by assisting groups and individuals in pursuing justice in the courts. This argument would hold water if everybody agreed on what justice is.
However, that's not the case. Various visions of justice are being expressed here today. I see representatives of the four political parties. Each political party has its own vision of justice. We don't all agree on what justice is. In fact, we know that this question was debated at the time of Plato and at the time his work The Republic first appeared.
Since there's no consensus on what justice is, it isn't accurate to say that this program helps people defend justice. That's simply not true. It is used to help people defend a certain vision of justice. After listening to Mr. Williamson's list, some people in this room and outside of it could agree with some, most or all the cases that were mentioned. However, there are people in this room and elsewhere in the country who do not at all share that vision of justice.
For example, if you consider the notion of equality, for some people equality means equality of opportunity or equality before the law, with the differing outcomes, different results, that will occur. For other people, equality means not equality of opportunity but equality of condition or substantive equality, which I take to be the position of the court challenges program, although I don't purport to speak for them. This is an example. There can be very sincerely held and different views as to what equality is, and so my central point is that the court challenges program does not fund justice. It funds one particular vision of justice. The court challenges program does not fund equality. It funds one particular vision of equality. The court challenges program doesn't fund language rights. It funds one particular vision of how language rights should be implemented. It is wrong, morally, politically, and ethically for the federal government to force all Canadians to pay with their tax dollars for the promotion of one particular view of justice that some people agree with and others do not.
Chief Mountain has persisted and persevered in his litigation without any funding from the court challenges program since the statement of claim was filed in 2000 and since 2003, when we were denied funding. Other individuals and groups should do likewise.
Executive Directeur, Canadian Constitution Foundation
Other individuals and groups should do likewise and raise their money from Canadians who agree with their particular vision of justice.
Thank you.
Conservative
The Chair Conservative Art Hanger
Thank you, Mr. Carpay.
From the Women's Legal Education and Action Fund, we have Ms. Chantal Tie.
Chantal Tie Member, National Legal Committee, Women's Legal Education and Action Fund
Thank you very much.
I first need to come clean that I am also the most recent past chair of the court challenges program. I was nominated to the court challenges program board by LEAF, served for seven years, and am now the immediate past chair. I need to tell you that before I start, because I actually have quite an intimate knowledge of the court challenges program and I'm currently on the national legal committee of LEAF.
I think it's important to make a fundamental point before I start. What is this shared vision that we have? I've just heard two people talk about differing visions of equality, differing visions of justice. We have a vision that this government has adopted. It's called the charter. That is the common vision. When I listen to my friends who have just spoken, what I hear is a disagreement about the vision and an attack on it by attacking the court challenges program.
The charter talks about rights. It doesn't talk about privileges, which can be withdrawn and granted at the will of Parliament. Our charter tells us that an essential part of our democracy is to ensure that the will of the majority will be always attentive to minority rights. This is our common vision of what justice is. In this way, the courts, through the charter, play an important role in balancing majority rule with minority rights.
Majority rule that violates fundamental minority rights is not part of our shared democratic vision, nor does LEAF believe it should be. The charter recognizes that minority rights are not always protected by the majority. In the minority community, which I come from, we have come to understand that true democracy is not simply majority rule; it means protection of the minority within a system of democratic majority rule. It's a fundamental principle that I think is worth restating.
The government, therefore, has an essential role in the proper functioning of our democracy, which means the government has to ensure that minority rights are protected. What value do those rights in our charter have if they cannot be enforced? What value is our Constitution if it has no effect? Ensuring the protection of minority rights is all about protecting and promoting our democracy, not about subverting it.
Access to the courts is essential for equality-seeking groups precisely because they are often members of disadvantaged and minority groups that are subject to the sometimes discriminatory effects of majority rule, whether intentional or unintentional.
The Supreme Court has affirmed its longstanding commitment to the ideal that it is the government's responsibility to govern, and governments are obligated to govern in accordance with the Charter of Rights and Freedoms. Government action that violates the charter must be measured against principles and values of substantive democracy.
Unfortunately, one of the unifying and defining features of many forms of disadvantage and discrimination is poverty. It's axiomatic that the disadvantaged and marginalized groups that the charter seeks to protect do not have the financial resources to mount court challenges, nor the political power to influence the majority. This is precisely why we have the charter and why we need the court challenges program: to redress the fiscal and power imbalance that exists and to ensure minority rights are respected.
The court challenges program permits the conduct of litigation to mediate disputes about equality and discrimination in a civilized and highly controlled manner before the courts. I suggest that it's naive to think the underlying disputes will disappear if the program is eliminated. The disputes will continue. It's just that they will be resolved in a different manner by a more desperate and more marginalized group, perhaps in a manner that is less civilized and less controlled.
Eliminating the court challenges program is removing the ability of disadvantaged groups to participate in the court process to resolve their disputes. I suggest that is not a good idea.
The government needs to think realistically about the waste of taxpayers' money that arises when disputes are not channelled into civilized and highly controlled courses, such as before the courts. Either way, the taxpayer is going to spend money. We believe the process and the promotion of constructive resolution of disputes through the courts is a preferred approach.
LEAF also believes that working together to create an equitable society contributes significantly to real national security.
Member, National Legal Committee, Women's Legal Education and Action Fund
Why should the government spend money on the court challenges program? Because, quite simply, the program is all about protecting minority rights and preserving democracy, not destroying it.
Conservative
The Chair Conservative Art Hanger
Thank you, Ms. Tie.
Presenting for the federation, Monsieur Rémillard.
Rénald Rémillard Executive Director, Fédération des associations de juristes d'expression française de Common Law Inc.
Thank you, Mr. Chair.
The mandate of the Fédération des associations de juristes d'expression française de common law is to work in favour of access to justice in French and to promote and defend the language rights of the Francophone and Acadian communities.
It represents seven associations of legal practitioners in various provinces. The only provinces where there are no associations of French-speaking common law practitioners are Prince Edward Island, Newfoundland and Labrador and Quebec, obviously, because we really serve the Francophone and Acadian communities.
The FAJEFCL promotes access to justice in Canada's both official languages. I think that's the key element here. Earlier reference was made to the concept of justice. Here we're really talking about access to justice, and that's the key point.
I'd like to talk a little about language rights. What language rights are protected and are the subject of funding by the Court Challenges Program? First, there's our children's right to an education in their language across the country, that is to say to be fully Canadian and to enjoy the benefits they should have as Canadian Francophones.
Language rights in the schools and schools management are matters we have been able to secure through highly controversial court challenges. If you are familiar with the history of Francophones in this country, you are aware of their epic struggle to acquire their education rights.
A second, very important point concerns language rights in the legal field, that is to say access to the courts. One of the key factors in access to justice is to be able to communicate in the language of one's choice with stakeholders in the justice administration system, that is to say with judges, attorneys, and to be able to file one's documents and to have access to the rules of procedure and so on in one's language. That's another very important language right. There have been court challenges on this point and major gains have been made in the past few years.
As regards legislative bilingualism, as you know, at the federal level, in Manitoba, New Brunswick and Quebec, all laws and regulations must be passed in both official languages. That's a right enjoyed by Francophones in Canada and Anglophones in Quebec.
As regards the language of work, language of service and the language of communication, this is mainly protected at the federal government level and in New Brunswick. Here again, this is a language right protected by the Constitution of Canada and that is the subject of court challenges.
The language of service is the subject of far fewer challenges. Here I'm talking about section 20 of the Canadian Charter of Rights and Freedoms. This is an area that remains to be explored, and there are still a lot of questions for which there have not been any answers.
There is also the unwritten constitutional principle of minority protection. You are probably all aware of Montfort Hospital and the principle of advancement towards equality. These are two important concepts for the country's linguistic minorities, whether they be Francophone or Anglophone.
Over the years, most of the unwritten constitutional principles, in particular the principle of advancement toward equality, have stemmed from numerous court challenges, largely funded by the Canada Court Challenges Program. And let's not forget Montfort Hospital here in Ontario. Over the years, the Court Challenges Program has received very good evaluations. You can read the reports, which are published annually on the Web site or in paper format.
Limited or reduced access to justice is the main consequence of the cuts to the Court Challenges Program. Some people may not like the content of justice, but I think everyone understands what access to justice is. You may be able to appear before the courts or you may not because you don't have the financial means to appear, defend and promote your interests. Access to justice must not be confused with the content of justice.
Access to justice is being very significantly reduced for the Francophone and Acadian communities, whether it be in education or with regard to the courts or services.
What individual, what parent in Prince Edward Island can afford to spend $500,000 to defend, before the Supreme Court of Canada, his right to an education in French for his children? That's access to justice. To all intents and purposes, that means that, since Francophone parents in Prince Edward Island aren't in the majority in the region where they live, they may have to pay $500,000 out of their own pockets to gain access to education in French. That's what we're saying.
As Canadian citizens, we have to have Canadian standards. There are Francophones in the country living in regions where they are not part of a Francophone majority, and those Francophones should not be penalized and have to pay $400,000 or $500,000 to have access to education in their language.
