Mr. Chairman and honourable members, the Canadian Bar Association is here today to underscore the immense and unique contribution that both the Court Challenges Program and the Law Commission of Canada have made to good governance and the democratic process in Canada. I'm going to take the few minutes allotted to me to elaborate on that theme a little.
The Court Challenges Program's mandate is to ensure access to justice in two particular areas of constitutional rights, language rights and equality rights. The courts have drawn a very clear line between the constitutional principle of access to justice and to the courts and the rule of law. As we all know, the rule of law stands for the very important principle that the law governs our relations and gives us rights and obligations, and also that the government itself is constrained by law, and most particularly that the government is constrained by the supreme law, which is the Constitution. Without access to the courts, these rights remain meaningless, and the Court Challenges Program plays a fundamental role in ensuring access to the courts and access to constitutional rights.
Canadian courts have also long recognized that, in the words of the Supreme Court of Canada, it would be “practically perverse” to expect governments to both enforce and challenge legislation, and as a result our justice system has recognized and accommodated public interest litigation to fill this void, to fill this role, this government obligation that it cannot itself fulfill. The Court Challenges Program has very much facilitated public interest litigation in its mandate areas.
In a constitutional democracy like Canada's, constitutional rights litigation contributes to democratic values and citizenship, and it makes an important contribution to democratic dialogue about rights and their limits. As a society as a whole, we suffer when constitutional wrongs go unchecked.
To be meaningful, rights have to be exercised, and yet without assistance from the Court Challenges Program many individuals and groups cannot access the courts. The amounts funded by the Court Challenges Program are but a fraction of the full cost of a constitutional test case. Individuals and groups also contribute to these cases, and lawyers carry out the legal work on a reduced fee scale, or in many cases on a completely pro bono basis. Despite the fact that the Court Challenges Program is only contributing to a fraction of the costs of the case, that contribution is vital, and without it many of these important rights would remain mere paper guarantees. Without Court Challenges Program funding, many of these cases would never be launched, and the constitutional violations would continue unchecked.
The Court Challenges Program has been spectacularly successful, especially in the area of language rights. For almost 30 years now, the Court Challenges Program has funded cases in this area. As a result, we have a rich and vibrant jurisprudence that has meant meaningful rights for francophone communities outside of Quebec and for the anglophone community within Quebec. Even though there has been a lot of work, and very successfully done, there is yet a lot of work to be done. It is still very early days. We have to understand that human rights evolve over time and that this is an ongoing and continuing process.
The Court Challenges Program has also done a superb job in funding equality rights test cases. Of course, this has been for a much shorter period of time, and there's even more work to be done in that area.
I'm going to turn now to the Law Commission of Canada. The Law Commission of Canada has also played a huge role in improving the administration of justice and furthering the rule of law in Canada through its mandate, which is the renewal of law to ensure that it's relevant, responsive, effective, equally accessible to all, and just.
The CBA has long been supportive of a federal Law Commission. In fact, we've been on the record in support of such an institution since 1966. It is very much a part of modern government. It's a bit ironic that the Canadian government has cut the Law Commission while it's at the same time proposing and supporting such developments abroad in countries such as Bangladesh that are under much more serious economic conditions than Canada is.
The Law Commission of Canada has contributed to a democratic dialogue. It works through a very participatory process. It has established partnerships with institutions, including law schools, public policy fora, the CBA, and many other organizations. It promotes open and informed dialogue and citizenship engagement in all of its processes. While it's independent of the partisan process, it is a very important input into government policy and law-making.
I think what's really important and what I don't think was very clear in the earlier discussions that I overheard is that the Law Commission of Canada sets its agenda through consultation and develops its projects based on this public consultation, and through this process, it identifies pressing issues that are not being systematically addressed by others. So by very definition, it's playing a unique role in only dealing with issues that cannot be adequately addressed by other institutions. We should also keep in mind that the Ministry of Justice has a representative on the advisory committee to the Law Commission of Canada, so they too have a voice in the issues that are studied by the Law Commission.
The Law Commission takes a very innovative and multi-disciplinary approach to its research. It's not something that a busy government department can do on a day-to-day basis.
I'd like to mention in particular the indigenous legal traditions project, which is really just in its formative stages--or at least the first stage of that research was finished--but the Law Commission had important plans to consult and further that work, and that's really being cut off at a very unfortunate time. It's a project that would help to cultivate and refine aboriginal legal traditions in Canada and would help to address the very difficult situation that these communities face and would help to build and help rebuild the relationship between aboriginals and non-aboriginals within Canada.
I think what's important to realize is that even if there are no specific legislative changes that come out of this project, there will be a contribution to the way the country operates, and that law reform is much broader than just passing a bill or commenting on a bill; that law influences culture and influences institutions outside of that process.
We understand that the Minister of Justice and other members of the government have said that the CBA can carry on the Law Commission's work. This is simply wrong. This is not work that the CBA has the capacity to do. The CBA participates in law reform processes and contributes the perspective of the legal profession on law, the administration, and support of the rule of law, but we are not a research institution. It's completely unrealistic to think we could fill the void left by the elimination of the Law Commission of Canada. We are an organization with a different mandate. We have no funds for this task, and it's only through voluntary efforts that the CBA members, who are busy lawyers with full-time practices, do the important law reform work that they already do. You cannot ask us to do more. There is a big difference between commenting on a bill and carrying out substantive, long-term law reform work.
In our view, the Department of Justice is also obviously engaged in law reform, but it does not have the capacity to carry out the same type of work as the Law Commission of Canada does. In fact, I was working for the Canadian Bar Association full-time in 1992 when the Law Reform Commission was cut and for the five years before the new Law Commission was started. We worked very closely with the Department of Justice to try to fill the void, and we all agreed that it just could not be done by either of our institutions or working together.
The Law Commission of Canada has a unique role that's not filled by any other organization, whether publicly or privately funded. In particular, there's no independent organization that's accessible, permanent, and has the comprehensiveness to carry out the work that the Law Commission does.
In closing, the CBA would like to point out that the abolition of both the Court Challenges Program and the Law Commission will impoverish the quality of governance in Canada. All Canadians are impoverished by the short-term thinking that has led to the abrupt elimination of these two institutions, but it is the members of disadvantaged groups and minority groups that will feel the cuts the hardest. The abolition of these two programs serves to reinforce the marginalization and precariousness of the positions of the francophone community outside of Quebec, the anglophone community within Quebec, aboriginal persons, women, persons with disabilities, racial minorities, and other vulnerable groups protected by the Constitution.
The CBA urges you to take all steps available to you as individuals and as a committee responsible for justice and human rights to redress a terrible wrong that has been done.
Thank you.