Thank you very much, Mr. Chairman. Thank you, everyone, for inviting me to participate in this very important and energizing discussion.
I was involved with the court challenges program right from its inception, and I have worked on a number of test cases, both funded by court challenges and not funded by court challenges. I have worked extensively with my colleagues on the panel, both with Canada Without Poverty—previously the National Anti-Poverty Organization—and with the Charter Committee on Poverty Issues.
On the second page of the statement that I distributed, I have outlined some of the key recommendations that I share with my colleagues with respect to the program. I don't intend to focus too much on those in my presentation. I would highlight just a couple of them and allow my colleagues to develop them further.
We believe it is critical to expand the scope of the program to include selective cases under section 7, dealing specifically with socio-economic deprivation and disadvantage, and poverty issues. I thought the previous panel spoke very well on the issues of intersectionality. I don't think we want to open everything. We really need to stick to the kind of focus that the program has traditionally had on issues of disadvantage, but poverty issues certainly need to be addressed, under both section 7 and section 15.
The other thing I would highlight is the importance of having access to international human rights mechanisms where domestic remedies have been exhausted. We are finding increasingly that domestic jurisprudence intersects with international jurisprudence. I am involved in a number of cases now where we have taken petitions to the UN Human Rights Committee when domestic remedies have been exhausted. It is a very important corrective mechanism, in order to keep working on a case where we haven't had a successful outcome in the domestic courts.
Because I am working a bit more internationally in recent years, I thought it might be more helpful for me to focus a little bit on a big picture about the way in which you could situate the review of the court challenges program in the broader issues of access to justice and what the charter ought to mean. Specifically, I would suggest that this committee should engage directly with the Prime Minister's commitment, in the mandate letter to the Minister of Justice, for the government to undertake a serious review of the positions that it is advancing in litigation. It seems to me that access to justice means a lot more than restoring funding to the court challenges program, as important as that is. It also means restoring our commitment to the charter and what it was expected to mean. I thought it would be helpful to just review some of my experience with what the charter was expected to mean and how we have, to some extent, lost sight of those original ideas and visions. I think it is time for us to recommit to those.
This year, the United Nations is celebrating the 50th anniversary of the adoption of the two covenants that codify the universal declaration: the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights, both of which were adopted by the UN General Assembly in 1966 and opened to ratification 10 years later.
Remarkably, today, May 19, happens to be the 40th anniversary of Canada's ratification of the two covenants. This is something that really deserves to be celebrated, because by ratifying the two covenants simultaneously 40 years ago, Canada distinguished itself from the U.S. and many other countries by expressing a commitment to the unified framework of the Universal Declaration of Human Rights, a framework which, as we know, owed a lot to the distinguished Canadian John Humphrey.
The Cold War division of the UDHR into two covenants, of course, has made us pay a price. There was, for a number of years, the idea that social and economic rights—rights to food, housing, clothing, and access to health care—were somehow second-rate rights, and that access to justice wasn't fundamental to those rights in the same way that it is fundamental to civil and political rights. That view has simply been rejected. It has been rejected by most governments around the world. It has been rejected by the UN General Assembly and Human Rights Council.
Significantly, in 2008, the UN General Assembly adopted the optional protocol to the International Covenant on Economic, Social and Cultural Rights. I was involved for many years in the debate leading up to that historic moment, a moment which Louise Arbour, when she was High Commissioner for Human Rights, after having been on our Supreme Court, described as absolutely historic; she said it was “human rights made whole”. Finally, we are recognizing that people living in poverty, suffering from hunger and denials of access to housing, are entitled to the same principle of access to justice as those whose civil and political rights have been denied.
What we have in Canada is moving backwards on that issue. Canada has not taken a progressive position at the UN with respect to the understanding of social rights as being equally entitled to access to justice. While the international community has made significant progress, Canadian courts and governments have moved backwards. On rare occasions, when people living in poverty have been able to mount court challenges to inadequate social assistance rates, homelessness, or denials of access to health care necessary for life, they have faced the most extreme position from Canadian governments, which have argued that governments have no positive obligation to protect the right to life, security of the person, or equality, or to take measures to address homelessness, hunger, or poverty.
These positions are not only at odds with international human rights; they are at odds with what the charter was expected to mean.
A few years ago, on the occasion of the 25th anniversary of the charter, I was asked by the court challenges program to do some research into the historical expectations of equality-seeking groups when the charter was adopted. As part of the research, I reviewed the transcripts and submissions made to the Subcommittee on Equality Rights of the Standing Committee on Justice and Legal Affairs, chaired at that time, as you may remember, by Patrick Boyer. It was that committee that recommended the extension of the court challenges program to include equality rights.
I was quite struck by how equality-seeking groups in 1985 in Canada were ahead of their time in affirming a concept of substantive equality, and of human rights made whole, just as Louise Arbour has spoken of them in the modern context. Their concept of equality drew heavily on Canada's commitment to social rights under international law. Women's organizations asserted that the poverty of women in Canada is a principle source of inequality in this country, and that governments' obligations to address it had to be a focus of section 15. People with disabilities referred to Canada's international human rights obligations to affirm that equality means a decent place to live, access to meaningful work, an adequate income, and a full range of social opportunities. Aboriginal representatives, anti-racism groups, and others, all referred to the importance of addressing systemic discrimination and socio-economic inequality.
Yet we have lost that shared commitment to this kind of inclusive and progressive understanding of what the charter means. That can't be blamed solely on courts. The Supreme Court of Canada, in fact, has left open the question of the scope of the charter to protect social rights. A review of Canada by the UN Committee on Economic, Social and Cultural Rights, in February, made it clear that it is up to the government to adopt and promote the interpretations of the charter that accord with Canada's international human rights obligations. The committee urged the government to meet with civil society organizations to discuss what positions should be taken, and to ensure that judges are provided with education about their obligations to ensure consistency with Canada's international human rights obligations. These hearings can perhaps be the beginning of a new conversation about what the charter really ought to mean, and a renewed commitment to fully including those who are living in poverty in that conversation.
Thank you.