Justice Committee on May 19th, 2016

[The Chair, Liberal, Anthony Housefather]

Ladies and gentlemen, I'm going to call the meeting to order.

I'd like to welcome everyone to this meeting of the Standing Committee on Justice and Human Rights as we recommence our study of the court challenges program and hear from our last group of witnesses on the equality provisions and the equality panel.

I'd like to welcome Ms. Avvy Go, who is representing the Metro Toronto Chinese and Southeast Asian Legal Clinic. One of our other witnesses is on his way up. As a result, I've asked Ms. Go to go first, and she has kindly consented.

Ms. Go, the floor is yours.

[Avvy Go, Clinic Director, Metro Toronto Chinese and Southeast Asian Legal Clinic]

Thank you.

My name is Avvy Go. I'm the clinic director of the Metro Toronto Chinese and Southeast Asian Legal Clinic. We're a community-based legal clinic in Toronto serving low-income non-English-speaking people from the Chinese and Southeast Asian communities.

I'm also a former equality rights panel member of the court challenges program and was first vice-chair of the board of directors of the program when it first became incorporated as a separate entity.

I would like to commend the Government of Canada for restoring funding to the court challenges program, and I want to thank the committee for giving me the opportunity to comment on how to make the program better.

[The Chair, Liberal, Anthony Housefather]

I'm sorry. The interpretation for Mr. Rayes is not working, so can I ask you to hold for one second, please?

[Avvy Go]

Yes.

[The Chair, Liberal, Anthony Housefather]

Welcome, Mr. Elliott.

[R. Douglas Elliott, Member, Honorary Advisory Board, Egale Canada Human Rights Trust]

I'm sorry, Mr. Chair. I wasn't told about the change of location.

[The Chair, Liberal, Anthony Housefather]

There are no worries.

I'd like to welcome Doug Elliott, who is here from the Egale Canada Human Rights Trust. He is a member of the honorary advisory board.

We've just started. You'll be after Ms. Go in terms of your statement, but right now we're waiting for the translation to get fixed.

Is the interpretation coming through?

Okay, Ms. Go. Please continue.

[Avvy Go]

As I was mentioning, I'm a former panel member and vice-chair of the program. The court challenges program, in my mind, has always played a critical role in advancing access to justice for many historically disadvantaged groups, in particular racialized communities, women, and people with disabilities who are among those who need support the most in accessing the legal services due to a number of barriers, in particular because they tend to be overrepresented among the low-income population in Canada.

Some people argue that we no longer need the court challenges program because equality jurisprudence is by now well developed. With all due respect, that is simply not the case. If anything, of all the various sections in the Canadian Charter of Rights and Freedoms, section 15 jurisprudence has often seen the greatest uncertainty and changes over the last decade, in particular the last 10 years.

While the charter represents the ideal of justice and equality that this country strives to achieve, the reality is that systemic racism is still very much alive and well, and is embedded in our legal system and reflected in many of the laws and policies, both at the federal and provincial level. Due to their lack of political power, marginalized groups continue to look to the court as a forum to voice their grievances and a place to advance social change.

Over the last 10 years the ability of these groups to launch charter litigation has been severely limited due to the de-funding of the court challenges program, and the fact that many under-resourced provincial legal aid programs do not fund test case litigation.

The 10-year hiatus of the program coincided with the period of a growing number of community groups, as well as lawyers, looking to the courts to advance racial equality claims. Yet ironically, it was during this time when the legal profession itself was becoming more diverse and more interested in racial justice that their access to funding, support to charter litigation, was cut.

According to Professor Bruce Ryder at Osgoode Hall Law School, the number of section 15 rulings by the Supreme Court of Canada has gone down over the last decade, and the depth of the court's engagement with section 15 issues has declined as well. He points out that many of the recent decisions from the Supreme Court focus on other charter issues and offer very little and brief reasons for rejecting the section 15 claim. There is currently no significant section 15 cases pending to which the Supreme Court has granted leave. This is so, notwithstanding the growing concerns regarding a multitude of legal issues affecting racialized groups, particularly in the criminal justice system.

The de-funding of the court challenges program has clearly had a direct and negative impact on the development of equality rights jurisprudence, particularly with respect to race-based equality claims.

Looking forward, we want to make the program better, but we also want to protect what has made the program a success. What has worked is the government's model, which ensures the program is accountable to its constituent communities, while at the same time maintaining its independence from the government.

While the program has managed to be an extremely efficient and effective organization, there are changes that can be made to enhance its success. We have included a number of our recommendations in the written submission. I'm going to highlight three in particular here.

First of all, we think that the program should expand coverage to fund arguments based on section 7 of the charter in addition to section 15, in cases where the section 7 argument is used specifically to advance substantive equality for disadvantaged groups.

The second point is to expand coverage to fund cases dealing with provincial laws, especially in provinces, not just provinces where the legal aid program does not provide for test case funding, but where the funding might be inadequate as well.

Thirdly, we should allow the court challenges program board the flexibility to reallocate funds among different categories of expenses within the program, so as to better respond to the needs of the equality-seeking groups and to address any emerging issues.

In conclusion, the program is one of the most unique and remarkable institutions that Canada has created to strengthen our country's democracy through the protection of minority rights. The government's decision to restore the funding represents a new opportunity for racialized and other marginalized groups to engage in a dialogue with the court and to help ensure that the government lives up to its promise under the charter.

[The Chair, Liberal, Anthony Housefather]

Thank you very much, Ms. Go.

Now we'll go over to Mr. Elliott.

Mr. Elliott, welcome.

[R. Douglas Elliott]

Thank you very much, Mr. Chair.

May I say, I fully agree with everything that my long-time friend, Ms. Go, has just said.

Egale Canada Human Rights Trust welcomes the opportunity to present to the committee today. Egale is Canada's only national charity promoting lesbian, gay, bisexual, and trans human rights through research, education, and community engagement. Founded in 1995, Egale was one of the top consumers of the court challenges program during its former existence under the skilled leadership of then executive director, John Fisher.

Allow me to brag a little bit. No other group has been more successful in achieving equality through the courts and through the use of the court challenges program.

Egale welcomes plans to reinstate the court challenges program and the opportunity to assist this committee in its important work. I might say, in reference to Ms. Go's comments about the stagnation of the jurisprudence, that I actually won the last section 15 case in the Supreme Court of Canada. It was the Hislop case, in 2007, almost 10 years ago. That should tell us something. Reinstatement provides an opportunity to critically assess the positive features and limitations of the former program, while also imagining what a more effective version might look like.

Canada is a leader in the world in ensuring protection from discrimination on the grounds of sexual orientation. Canada was one of the first countries in the world to legalize equal marriage. That progress is in no small part due to the impact of the CCP. However, in the years since the CCP was cancelled, Canada has rested on its laurels.

Canada has fallen behind other countries in advancing the rights of sexual minorities, particularly in recognizing the rights of transgender, transsexual, two-spirit, and intersex persons. It will come as no surprise to you that I'm going to urge you all to vote in favour of the bill to add gender identity and gender expression. It's a welcome development. However, it's noteworthy that since the court challenges program was cancelled in 2006, not a single case has reached the Supreme Court of Canada that considers gender identity or gender expression as an analogous ground. In my view, that's no coincidence.

It's to be remembered that when section 15 of the charter was approved in 1982, legislators declined to expressly include sexual orientation, let alone gender identity, in its language. However, the door was left open for the inclusion of sexual orientation as an analogous ground. This was recognized in the report of the former parliamentary committee on equality rights by Patrick Boyer on compliance with section 15.

Regrettably, none of the report's recommendations on law reform respecting sexual orientation were taken up by Parliament despite a promise by then attorney general John Crosbie to do so. It was clear that there was a lack of political will to do the right thing. Members of our community would have to fight to establish their rights in the courts. We did so, and we won. Perfect equality is a goal towards which we should always strive as a society. Canada has come far on that journey, but it still has a long way to go. A revived court challenges program will assist our country to advance.

I do have a written submission that I urge you to consult, but I'll highlight some of the recommendations that we're making.

We strongly support the reinstatement of the court challenges program, an excellent program that Egale used frequently. That program has made a significant contribution to cases helping to reduce discrimination based on sexual orientation. As my colleague Ms. Go has highlighted, it's no coincidence that the termination of the court challenges program has coincided with the stagnation in the jurisprudence regarding section 15. There has been no progress on gender identity and gender expression equivalent to that which was made on sexual orientation. A renewed court challenges program, quite frankly, is a matter of fairness. It will help level the playing field between marginalized groups and governments. If we had spent a tiny fraction of the monies that are expended defending charter violations to protect charter rights, we would be a much better country.

It's really important to realize that one of the things the court challenges program did was to present a way to engage the private bar. The amount of resources that were devoted by the private bar to these cases far exceeded the amount of resources that were expended by the government. It is a classic leveraging of private resources and mobilizing of those private resources through government seed money, and I might also say, it developed excellence in the bar.

CCP will enhance equality, and improved equality enhances the quality of life for all Canadians. We have only to look to the example of North Carolina to realize what happens when you promote inequality. There are devastating economic consequences for everyone.

The court challenges program administration should be independent and cost-effective, and as a consumer, I can tell you that we were very satisfied with the previous administration of the program. We believe that funding of consultations should be included in the court challenges program again. We recognize that caps on funding cases are needed, but they will need to be set at higher levels. The amount for trials was especially quite inadequate.

As with the language rights support program, funding should be based on merit. Previously the program would not allow funding with respect to tribunals, and it would not allow funding of matters under provincial jurisdiction. I always found that bizarre, because the federal government appears in court all the time on matters that involve provincial jurisdiction. They have a right to appear if the charter is engaged. It's not meddling in provincial jurisdiction. The federal government always has an interest in promoting and protecting charter rights.

The tribunal should be irrelevant. Lots of people go to tribunals these days. In the province of Quebec, for example, most gays and lesbians use the provincial human rights mechanisms to redress wrongs. That is the model used by the language rights support program. I've talked to lawyers who work with that program, and they find that it works exceptionally well. It's better to have wise people like Ms. Go look at the cases that come forward and assess them based on which ones are likely to have the greatest impact on protecting and promoting charter rights.

Thank you very much. I will be happy to answer your questions, and I urge you to have a look at our 10-page written submission.

[The Chair, Liberal, Anthony Housefather]

We actually received your written submission, so I think everybody's already had a chance to look at it.

[R. Douglas Elliott]

Excellent. Thank you, Mr. Chair.

[The Chair, Liberal, Anthony Housefather]

I'd like to welcome Carmela Hutchison from the DisAbled Women's Network of Canada.

Ms. Hutchinson, welcome.

[Carmela Hutchison, President, DisAbled Women's Network of Canada]

Thank you.

[The Chair, Liberal, Anthony Housefather]

I'm sorry you didn't necessarily have a chance to catch your breath. You've just arrived and I'm asking you to speak. I hope that's okay.

You have eight minutes. Your time starts now.

[Carmela Hutchison]

Thank you very much.

We wish to acknowledge the Algonquin people on whose traditional lands we gather today. We thank the Government of Canada for granting the inquiry to the missing and murdered aboriginal women.

The DisAbled Women's Network of Canada is a national feminist cross-disability organization whose mission is to end the poverty, isolation, discrimination, and violence experienced by Canadian women with disabilities and deaf women. The DisAbled Women's Network of Canada has a long history of advancing rights through the courts both on its own and in conjunction with other equality-seeking organizations such as LEAF and the Council of Canadians with Disabilities.

I testified before the Status of Women's standing committee on December 4, 2007, regarding the impacts of cuts to the court challenges program. Before I begin I'd like to take one moment as I appear before you to acknowledge that this is a great day for Canada to see the restoration of the court challenges program. However, for the DisAbled Women's Network of Canada, it's merely a break in the clouds. We are so far behind even with court challenges that the restoration of the program is a wonderful first step. But make no mistake, from where we sit, we're bailing the ocean with a teaspoon.

Canadian women with disabilities are no different from any other women with disabilities in the world. Article 6 of the CRPD, which is the Convention on the Rights of Persons with Disabilities, applies as much to us as it does to any of our sisters.

Therefore, our first recommendation is for Canada to ratify the optional protocol without delay. As part of a national disabilities act, it will become imperative to ensure that the legislation of our country is free of barriers for women with disabilities. However, this will generally make it free for barriers for men as well, because in most instances women's rights are everyone's rights. This will involve inter-ministerial collaboration as well as broad stakeholder consultation. DAWN Canada would hope to be included in such a process, as it is today, and to be active participants in helping shape our own future and the future of Canadians.

DAWN-RAFH Canada is a member organization of the court challenges program of Canada. We believe the current governance structure has been effective in its stewardship during challenging times. Properly resourced, we believe it could continue to provide robust leadership to Canadians. We agree with recommendations made by other colleagues that the criteria be expanded to include an indigenous stream, a minority language stream, and an equality stream that goes beyond section 15 of the charter. There also should be a newcomers stream for immigration issues and for other ethno-cultural groups. It is very important to provide proper inclusive support for intersectional inclusion such as disability accommodation, linguistic accommodation, sexual orientation, and to support proper participation in all phases of litigation.

At the court challenges program of Canada's annual general meeting, there was openness to thinking about cases being assessed on their facts and merits rather than the artificial caps and criteria that limit how far a case can actually be pursued. We also agree with the Council of Canadians with Disabilities that provincial and territorial cases as well as human rights tribunals should be funded by an enhanced court challenges program of Canada.

DAWN Canada has done extensive work to address the criminalization of mentally ill women, especially with respect to Ashley Smith. We've also mentioned Kimberly Rogers, who died as a result of a lack of access to both criminal and poverty law representation. Today we are going to focus more deeply on the lack of access to civil legal aid.

In West Coast LEAF's brief, they identified the very serious issues faced by lack of access to civil legal aid particularly in respect of family and poverty law matters that has the most direct impact on the respect and preservation of their rights.

We can give you examples from just this week alone in the organizations we work with. There is a woman with a disability who is trying to ensure her property rights from inheritance, and another who is trying to sell her home after a very bad divorce where her abusive ex-husband prevented the sale of the home by placing a caveat on it. Before this he had placed a business in her name that had gone insolvent, which took her years to get resolved.

There is also a woman with a disability who is in two landlord-tenant disputes after having had to flee dangerous housing environments due to her health. We had one young mother, who is fighting breast cancer, in a divorce process that involves a custody dispute, and she is also in a grievance process with an employer who fired her while she was pregnant. There was a woman living in long-term care who was assessed the ambulance bills for her four hospital admissions even though she is only on comforts allowance. This was finally reversed, but it took several weeks and she had the attendant stress of that during that time.

Another example is a woman who was admitted to a psychiatric hospital and was physically assaulted by a co-patient, and who is being given no help for either physical or psychological recuperation from expenses associated with the attack. A newcomer woman, who had a stroke and depression that's refractory to medication, is unable to find a way to have her current concerns addressed about electric shock treatment, which has also compounded her health concerns. Finally, there is a woman who is trying to leave the sex trade facing eviction and we're trying to help her find appropriate housing, income supports, and medical care to support the application for disability supports.

Our last comments and recommendations are directed to our own DAWN-RAFH Canada brief, “Recommendations: Meeting the Needs of Victims of Crime in Canada”, which was submitted to the Department of Justice Canada for the development of a victims' bill of rights for September 27, 2013, outlining the needs for proper disability accommodation to support the needs of victims of crime with disabilities, who are overrepresented amongst the victim population.

In DAWN-RAFH Canada's fact sheet, which is attached to our brief, there are many facts about the different ways in which women with disabilities are subjected to greater risks of violence against them because of the way they're brought into contact with a greater number of people through the process of caregiving and an emphasis on compliance with authority figures as part of living with a disability. In the 2014 report on criminal victimization in Canada, we note that mental health and intellectual disability is often associated with violent victimization, more than four times higher than people who assessed their mental health as excellent or very good. There were 230 incidents per 1,000 population, compared with 53 in the general population.

DAWN-RAFH Canada intervened in the D.A.I. case in 2012, which was a landmark case that helped people with mental disabilities be able to give their evidence as would any other witness, by simply giving an oath to tell the truth. We've never been able to determine whether or not the full impact of this ruling helped survivors to come forward.

Ongoing research as to outcomes of decisions is important, as identified by other colleagues. In the same way we have forged ongoing relationships with the Status of Women office and the office for disability issues, we hope our appearance before you twice in the last two weeks clearly demonstrates a need for ongoing work and dialogue, supported by a dedicated program funding envelope, so that our sisters, women with disabilities across Canada, may also enjoy justice, rights, and dignity along with our fellow Canadians.

Thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you very much, Ms. Hutchison.

We very much appreciate all of the interventions of each of the panellists, and now we're going to move to questions.

We're going to start with the Conservatives.

Mr. Cooper.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Thank you to all of the witnesses for your testimony this morning.

I'll ask my first question to Mr. Elliott.

In your presentation you noted, of course, that equality of marriage was achieved in Canada, and you mentioned that the court challenges program played an important role in that achievement. I was wondering if you might elaborate on that. The legislation on equality of marriage was passed in Parliament in 2005. It was a free vote. It had the support of members in all of the major political parties. It wasn't as a result, for example, of a Supreme Court decision saying to Parliament, you must do something. Parliament, in a lot of ways, was out before the courts on equality of marriage.

[R. Douglas Elliott]

With respect, Mr. Cooper, I will have to disagree with you on that. I think the record is quite clear that, with the exception of the hate crimes changes, all of the actions that have been taken with respect to sexual orientation have been in response to court rulings.

The first legal marriage in Canada took place at the Metropolitan Community Church of Toronto, a church that I attend, and I know at least one member of your committee has attended on occasion. On January 14, 2001, that marriage was legally recognized by the Ontario Court of Appeal in its ruling in the Halpern case on June 10, 2003. By the time Parliament passed the Civil Marriage Act, the courts had already spoken in virtually every province. You will recall that it was the decision of then-attorney general Martin Cauchon to not appeal to the Halpern ruling that led ultimately to the Civil Marriage Act, and then the reference to the Supreme Court of Canada, where I appeared for the Metropolitan Community Church of Toronto. By the time Parliament acted in 2005, in fact we had equal marriage in virtually the entire country as a result of the court.

It was an important step, and I will say that I was heartened that there was all-party support for that measure. Some of the finest speeches I've heard in Parliament were made in connection with that act. It was definitely, I will concede, not in compliance with the court ruling but it was catching up with the courts, in my view.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Thank you for that, Mr. Elliott.

In your written submission you talk about renewing funding for consultations in light of limited funds being available in the program and you make reference to a consultation on equal marriage strategy as well as a trans rights strategy. Could you elaborate a little about the consultation process and how that works and what the benefits are?

[R. Douglas Elliott]

Yes, I'm happy to do so, Mr. Cooper.

That's an excellent question. Let me use the equal marriage one because I was involved in that. At the time we were contemplating addressing the problem of equal marriage, many groups across the country had views about how to approach that problem. Litigation was under way in Quebec. People in British Columbia and Ontario wanted to bring litigation. There was a lot of discussion about the effective strategy, and frankly, some people even within the LGBT community were wondering whether we should even be doing it at all.

Egale was given a modest amount of money to organize a conference in Toronto that brought together stakeholders from all parts of Canada, to have a very candid discussion about these issues, about the various strategies that could be deployed. For example, the people in British Columbia argued the provincial government was prepared to support an equal marriage challenge, and that's where we ought to proceed first. The people in Quebec were saying they already had litigation under way and that we ought to be supporting their measure.

It provided an opportunity for our group to have a very focused discussion about the way forward in a way that's not possible without that kind of assistance. I can't remember the amount that was given, but it was something like $25,000. It was a very modest amount of money for the whole equal marriage process. I believe Egale got about $160,000 in funding, whereas I know the federal government spent $400,000 on expert witnesses in the Ontario litigation alone, so you got a lot of bang for your buck, Mr. Cooper.

[The Chair, Liberal, Anthony Housefather]

There is time left for a small question, if you want, Mr. Cooper.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

I'm okay.

[The Chair, Liberal, Anthony Housefather]

You're okay.

Mr. Tilson, you wanted to ask one small question?

[David Tilson, Conservative, Dufferin—Caledon, ON]

How much time do I have?