Evidence of meeting #20 for Justice and Human Rights in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was cases.
A recording is available from Parliament.
9:45 a.m.
Bonnie Morton Chairperson, Charter Committee on Poverty Issues
No, not on the panel, I am on the board.
9:45 a.m.
Liberal
The Chair Liberal Anthony Housefather
We really appreciate your expertise. We are going to hear your statements first, and then we are going to take questions.
We are going to start with Mr. Porter.
9:45 a.m.
Bruce Porter Executive Director, Social Rights Advocacy Centre
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.
10 a.m.
Liberal
The Chair Liberal Anthony Housefather
Thank you very much.
Now we'll go to Ms. McLachlan and Ms. Biss.
The floor is yours, ladies.
10 a.m.
Harriett McLachlan President, Board of Directors, Canada Without Poverty
Thank you.
Thank you for inviting Canada Without Poverty to appear at this important study on access to justice. CWP is a federally incorporated, charitable organization dedicated to the elimination of poverty in Canada. Since our inception in 1971 as the National Anti-Poverty Organization, we have been governed by people with direct, lived experience of poverty, whether in childhood or as adults. This lived experience of poverty informs all aspects of our work.
I am the president of the board of directors, and although I'm an educated professional, I've lived most of my life in poverty. I have first-hand experience of the substantial barriers in access to justice for the one in seven people in Canada who are living in poverty. I truly believe that if the justice system were accessible, I would not have endured 34 years of poverty. I'm joined in my comments by Michèle Biss, Canada Without Poverty's legal education and outreach coordinator and human rights lawyer.
One of the principal barriers in accessing the justice system for people living in poverty is the lack of availability of financial resources. The cost of legal advice, administrative fees, and other collateral costs directly restrict those living in poverty from accessing legal mechanisms. In communities where legal aid is not available, primarily in civil and administrative matters, the most marginalized who are living in poverty are often denied justice. For example, as noted by the UN Committee on Economic, Social and Cultural Rights in their 2006 concluding observations, cuts in British Columbia for civil legal aid in family law services disproportionately affect women. Instead of remedying this service gap, B.C. took further measures to eliminate all funding for such poverty law matters as housing and eviction, welfare, disability pensions, and debt.
We live in an era when social protections for the most vulnerable are under near-constant threat. One of the underlying causes of the constant mining of such programs is attitudinal. It's attitude. In Canada, despite the obvious systemic nature of poverty, there remains a dominant discourse that stigmatizes poor people as undeserving and lazy. As a result, any provision of services, no matter how paltry, is deemed an act of benevolence on the part of governments, rather than governments meeting their human rights obligations to ensure the active participation in democracy of people who are poor.
The entrenched stigma associated with living in poverty is often internalized, and can result in a fear of reprisal and further prejudice, particularly when people are trying to claim their legal rights. This fear of asserting one's rights through the justice system is exacerbated by the growing trend of aggressive litigation by the government, which asserts that rights claims of this population should not be heard. For example, in the Tanudjaja v. Attorney General case, when four homeless individuals attempted to assert their right to housing in the courts, the government respondent filed a motion labelling this exercise of rights as frivolous and vexatious. This left homeless people with no recourse to claim their basic human rights, and occurred without any review of 9,000 pages of expert evidence filed by the applicants.
The court challenges program validated the legitimacy of poor people as rights holders. It acted as a mechanism to combat discriminatory stereotypes of poor people by providing access to justice.
My colleague Michèle will now take over.
10:05 a.m.
Michèle Biss Legal Education and Outreach Coordinator, Canada Without Poverty
Prior to 2006, the court challenges program was exceptional in our opinion, and while we are encouraged by the government's decision to re-fund the equality rights component of the program, we emphasis that modernization may not require a complete revamping of the program. Instead we suggest that the best aspects of the program be retained, those that were effective, particularly for people living in poverty wishing to claim their rights.
There were many unique aspects of the court challenges program about which others have no doubt spoken, but what is less talked about is the way in which the program served as an accountability mechanism, to ensure that Canada implemented its international human rights obligations.
The United Nations has recognized the court challenges program as a human rights mechanism relevant to our international human rights treaty obligations. For example in 1993, concluding observations from the United Nations Committee on Economic, Social, and Cultural Rights stated that the program enabled disadvantaged groups or individuals to take important test cases before the courts. They commended the program and Canada for recognizing the importance of effective legal remedies against violations of social, economic, and cultural rights, and of remedying the conditions of social and economic disadvantage of the most vulnerable groups and individuals.
In its concluding observations in 1993, 1998, and 2006, the committee went further to recommend that claims at provincial and territorial levels be funded. We propose that this recommendation be implemented.
In our opinion, the review of the program also provides an excellent opportunity to consider taking steps to ensure that the program be both independent and protected by legislation. In this regard, the court challenges program should remain a free-standing institution, not associated with any academic institution as it was prior to 2006. It should also retain its autonomous equality committee, made up of members from a variety of stakeholder sectors to determine which cases should be supported by the program.
Historically, funding to this essential program has been cut many times and this “here today, gone tomorrow” attitude must stop. Access to justice and rights claims for equality-seeking member groups should be accorded the highest protection from political whims. For this reason, we suggest that the program be enacted by legislation.
We encourage the committee to assess the ambit of the program to ensure it can address the various types of equality rights claims that people in poverty wish to make. Upon modernization of the program, we recommend that the scope be opened beyond claims made under section 15 of the charter to include those claims under section 7, where claims focus on the right to life, security of the person, and equality of people living in poverty and who are homeless.
It is time for the Canadian government to acknowledge the close connection between the right to life and those who are the most marginalized, those who are living in poverty or who are homeless. For example, a study in Hamilton, Ontario, found that those living in the rich neighbourhoods had a life expectancy 21 years longer than those in poor neighbourhoods.
These numbers are not improving. In British Columbia, a recent study found a 70% increase in deaths among homeless populations in 2014 as compared with the previous year. As noted by Madame Justice L'Heureux-Dubé in the case Regina v. Ewanchuk, sections 7 and 15 have special significance as they are the vehicles by which international human rights laws are implemented. In the context of the particular barriers faced by people living in poverty and the role of the program in fulfilling human rights obligations, we encourage the committee to seriously consider opening the program to section 7 claims that might be particularly relevant for people living in poverty and who are homeless.
This government has taken an important step forward as an international human rights leader in the re-funding of equality claims under the court challenges program. Before us is an exceptional opportunity to ensure that those who are the most marginalized and stigmatized can access justice and claim their legal rights.
In summary, in its deliberation on the modernization of the program, we ask the committee to, first, retain the program's strengths from 2006; second, enact the program in legislation; and third, extend the ambit of the program to include claims at provincial and territorial levels and to section 7 claims that interact with socio-economic inequality and discrimination.
This could be an important legacy offered by this government to the 4.9 million people who are living in poverty in Canada.
We look forward to answering your questions. Thank you.
10:10 a.m.
Liberal
The Chair Liberal Anthony Housefather
Thank you very much.
We'll go to Ms. Morton.
Ms. Morton, welcome.
10:10 a.m.
Chairperson, Charter Committee on Poverty Issues
Thank you very much.
I would also like to thank you for inviting the Charter Committee on Poverty Issues to present today.
I am the chairperson of the Charter Committee on Poverty Issues, and we lovingly know it as CCPI. I joined CCPI as someone who was living in poverty at the time, and that was back in 1989. I continue to work on poverty issues locally, nationally, and internationally as a United Church minister with the Regina Anti-Poverty Ministry.
The Regina Anti-Poverty Ministry does individual advocacy. We do public education on poverty issues, and we challenge systemic discrimination, very similar to what the Charter Committee on Poverty Issues does, but in a little different way.
CCPI is a national committee established in 1989 to bring together low-income representatives, constitutional experts, and advocates, to assist people living in poverty in Canada to claim their rights under the charter through international human rights and other laws. CCPI consults with people living in poverty, as well as experts across Canada and internationally, in developing its position on particular issues.
CCPI has never had any operational funding. We have relied on funding from the court challenges program of Canada on a project-by-project basis or a case-by-case basis, to do research, to consult with experts, and to consult with affected constituencies on many issues dealing with the application of section 15 of the charter.
CCPI would not exist if it weren't for the court challenges program. It had become clear in 1989 that issues of equality and discrimination affecting people living in poverty in Canada were not being addressed in the charter cases. The court challenges program took the initiative to organize and fund a national meeting on poverty issues. It was at that meeting in 1989 that the Charter Committee on Poverty Issues was formed. The court challenges program has also made a priority of including people with the experience of poverty in its governance.
I have been on the court challenges program in the past. I still sit on the board. In the past, I was living in poverty. Today, I now can claim I have the experience of having lived in poverty.
I was last elected to the board of the court challenges program in 2006 and I continue to be a member at this point in time. Since its formation in 1989, CCPI has intervened in 14 cases at the Supreme Court, and either initiated or intervened in many other cases at lower courts. We relied on the court challenges program for many of these interventions.
As previous speakers have pointed out, it is critical that a restored court challenges program be able to identify groups that are not getting access to justice, as it did with the people living in poverty, and assist them to build their capacity to identify key issues, assemble legal teams, and to develop evidence and arguments and ensure that the litigation strategies are linked to education and networking. In other words, the program must do more than simply respond to applications from lawyers. It must support access to justice in a variety of ways, including support for case development, for meetings, consultations with affected communities, public education, as well as follow-up to legal actions to ensure that decisions are implemented.
In its commitment to poverty issues, the court challenges program has always ensured that the groups who are affected by poverty, including aboriginal peoples, women, people with disabilities, and racialized communities, are included in litigation and outreach strategies. This commitment to equality inclusiveness within the human rights movement itself has been critical to the success of the program, and in our view must remain a central aspect of a restored program.
CCPI believes it is critically important as well that the design of the court challenges program continue to ensure accountability through linguistic and equality-seeking groups. We would not consider a program that was administrated by a university, or another organization or institution, to be a restoration of the court challenges program.
A unique feature of the program has been that it has brought together a diverse range of groups that have worked together to ensure that litigation has been advanced in a manner that's respectful of others. You heard from Avvy Go earlier that it's also not harmful to others. Annual court challenges meetings have functioned in important ways to sustain the commitment of the equality and to ensure that we understand each other's issues better.
A critical aspect of litigation of CCPI has been to ensure accountability to a project team that includes low-income advocates, people living in poverty themselves. Sometimes we have insisted that lawyers make arguments that they may not think will be successful in the short term, but they're important to CCPI in the long-term strategy. When CCPI began its work, for example, lawyers were reluctant to cite Canada's international human rights obligations to ensure access to adequate food, housing, and an adequate standard of living, but we insisted that these rights are fundamental to our rights to equality and security of the person.
Over time, lawyers and courts have become used to referring to our international human rights. In the same way we believe that the court challenges program must be accountable to and run by equality-seeking and minority language groups in order to ensure that litigation is responsive to the needs and aspirations of the affected communities.
We also urge the committee to consider extending the mandate of the court challenges program to include international human rights mechanisms where they are used in support of domestic litigation or as a way to challenge unfavourable decisions that are contrary to international human rights.
We think engaging more effectively with international human rights mechanisms is part of the modernizing of the court challenges program. Canadian courts are out of step with international human rights standards, particularly in the area of poverty and social and economic rights. It is particularly important to people living in poverty in Canada that we have access to international mechanisms to highlight the failures of our courts in ensuring access to justice.
We also urge that this government ratify the optional protocol to the International Covenant on Economic, Social and Cultural Rights, as well as the optional protocol on the Convention on the Rights of Persons with Disabilities, and ensure that support can be provided by the court challenges program to use these mechanisms in appropriate cases.
Another critical issue for people living in poverty, as pointed out by Canada Without Poverty, is the need to extend the mandate of the court challenges program to select cases under section 7 of the charter. Also, as Bruce Porter pointed out, ensuring that we have access to food, housing, water, sanitation, health care, and other social and economic rights in a country as affluent as Canada is fundamental to the vision of substantive equality that the CCP was instituted to advance.
These issues frequently arise in relation to the courts' interpretation of the rights to life and security of the person under section 7. It's important that people living in poverty be able to advocate for interpretation of the rights to life and security of the person that do not exclude issues of homelessness, hunger, or poverty.
We believe that it's become essential that section 7 cases involving social and economic deprivation be eligible for funding under the program. CCPI also supports proposals for the extension of the program to provincial and territorial cases of national importance. Ensuring access to justice to ensure compliance with human rights by all levels of government is a responsibility of the national-level government under the international human rights law that they've committed themselves to.
In early years we had protections under the Canada assistance plan, which was an act long ago before maybe some people sitting at the table. In 1996 when it was removed and replaced with the health and social transfers, we lost the standards that were protected under that act. We no longer have any of those protections today. This means that people living in poverty rely even more extensively on the charter to ensure that provincial and territorial laws and policies do not deprive people of access to basic requirements of life, security of the person, and dignity.
Where it is in the context of the provincial and territorial cases for a federal case, the interpretations the Supreme Court of Canada gives to charter rights affect all levels of government. Most poverty issues are within the provincial and territorial jurisdiction, and it is important the charter committee ensures, or the court challenges program can provide, the funding to challenge some of these violations.
In conclusion, I want to emphasize CCPI welcomes the commitment of the new government, both to restoring and modernizing the court challenges program, and to reviewing the positions it has taken in court. This is particularly important—
10:20 a.m.
Liberal
The Chair Liberal Anthony Housefather
Ms. Morton, you're well over time at this point. Can I ask you to please wrap up?
10:20 a.m.
Chairperson, Charter Committee on Poverty Issues
All right.
As I was leaving the Westin hotel this morning, where I've been graciously housed, a few steps away there was a man laying on the street, homeless. That shouldn't happen so few metres away from the House of Commons. In front of the Lord Elgin hotel a woman was holding a cap out and asking for money. That shouldn't happen in the midst of such affluence.
As Gandhi once said, “Poverty is the worst form of violence”. He also stated, ”You must be the change you wish to see in the world”. Let us enable all important mechanisms of change, as we modernize the court challenges program to create true access to justice for all, and in doing so end the violence of poverty in Canada.
I look forward to answering any questions.
10:20 a.m.
Chairperson, Charter Committee on Poverty Issues
I have these. I couldn't translate them, but I have these for others after.
10:20 a.m.
Liberal
The Chair Liberal Anthony Housefather
Thank you very much. The clerk will take the copies and translate them for the members of the committee.
Mr. Nicholson.
10:20 a.m.
Conservative
Rob Nicholson Conservative Niagara Falls, ON
Thank you very much.
Thank you very much for your testimony here today.
I know we only have a couple of minutes.
Ms. Morton, you were saying the Canadian courts are out of step when it comes to issues like poverty. You must be fairly pessimistic that, if there's a restoration, as the government has promised, of the court challenges program, we will be funding cases brought to the courts that will get no sympathy or won't give redress to these issues. Is that what you're saying?
10:25 a.m.
Chairperson, Charter Committee on Poverty Issues
I'm not saying that at all. I'm saying that right now the courts are not ruling in our favour. We haven't been able to get a lot of cases into the courts either for the past—
10:25 a.m.
Conservative
Rob Nicholson Conservative Niagara Falls, ON
You said the courts are out of step on this issue. Is it your hope that with more cases they might start changing their mind or start changing...?
10:25 a.m.
Chairperson, Charter Committee on Poverty Issues
We have started seeing that. I mentioned in my brief that we have seen the courts, as well as lawyers, starting to look at...and dissenting judges are using international human rights to defend their positions as well.
10:25 a.m.
Conservative
Rob Nicholson Conservative Niagara Falls, ON
Fair enough. Thank you.
Ms. McLachlan, thank you again for your comments as well.
You were talking about the difficult time you had when you suffered from poverty, and that some of the legal supports were not.... Were you referring to something like the court challenges program, or were you talking about civil legal aid that might be provided to you on an individual basis, as opposed to some sort of class action? What exactly were you talking about?
May 19th, 2016 / 10:25 a.m.
President, Board of Directors, Canada Without Poverty
It was more of an individual matter, and the lack of access, that impacted my life tremendously. I don't think it would be something...maybe it could have been something to take to the court challenges program, but it was more individual.
10:25 a.m.
Conservative
10:25 a.m.
President, Board of Directors, Canada Without Poverty
I'm from Quebec.
10:25 a.m.
Conservative
Rob Nicholson Conservative Niagara Falls, ON
The Quebec version of legal aid just would not fund cases, or.... Are you talking about things like matrimonial dispute cases, support, that kind of thing, or division of assets, or are you talking in terms of housing and getting legal support?
10:25 a.m.
President, Board of Directors, Canada Without Poverty
It's a number of those things. It's complex. As a social worker, I've seen a lot of complex cases where there are a number of different aspects that are intertwined and intersect that impact people.