Justice Committee on May 19th, 2016

[Rob Nicholson, Conservative, Niagara Falls, ON]

I presume your organization and others are supportive and lobby both levels of government with respect to legal aid funding. Would this be part of what your mission is?

[Harriett McLachlan]

That's something that needs to be looked at for sure. There needs to be some changes to that, where legal aid doesn't exist. We need to have more legal aid accessible to people. Rates sometimes are incredibly...people have to be in tremendously dire straights before being able to qualify and get access, and that needs to be looked at.

[Rob Nicholson, Conservative, Niagara Falls, ON]

I presume that part of your organization and yours, Ms. Morton, has to do with lobbying provincial jurisdictions to open their doors with respect to legal aid. Some legal aid is financed indirectly through the federal government. Nonetheless, I assume that's part of your mission. Is that right?

[Bonnie Morton]

Yes, through our ministry, we lobby for provincial monies to cover more in legal aid than it does at this point. I live in Saskatchewan. In 1987, the government changed the mandate of legal aid so that it can only cover matrimonial issues and not even.... It is only family law. It's more around the children. You wouldn't be getting a lawyer to help you with the division of assets or anything like that. As for criminal law, if you're not looking at incarceration, you don't get legal aid. Across the country, legal aid is handled differently.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Thank you for your comments. That was interesting.

Mr. Porter, you've been involved with many cases over the years. You talked about the international aspect of human rights. What exactly are you proposing for the court challenges program? Is it the ability to raise these international treaty obligations, which Canada has signed on to and which have been adopted by the United Nations or other international organizations, in arguments before Canadian courts? Are you saying that the court challenges program should be expansive enough to allow you to take your case to international courts or to the United Nations? Is that what you're suggesting?

Are you suggesting that the program should be broad enough to bring the arguments into Canadian courts, or perhaps you are doing both? I'm not sure.

[Bruce Porter]

The program has been supportive of the use of international human rights to interpret section 15 of the charter, so that I think would continue to be the case.

I'm now involved in a case having to do with the denial of access to the interim federal health benefit to a person who was applying for humanitarian and compassionate consideration and was ineligible. It was found that her right to life was violated, but the Canadian courts held that this finding was in accordance with the principles of fundamental justice under the charter. The Supreme of Court of Canada denied leave. We were able to file a petition under the optional protocol to the International Covenant on Civil and Political Right, where we take the same arguments before an international human rights treaty-monitoring body. The decisions rendered under the optional protocols have a fair bit of authority. They can influence the way in which Canadian courts may review what they did and reconsider, perhaps not in that case but in another. It's not an appeal procedure, but it's an important avenue for allowing disadvantaged groups to get a rethinking of an issue by an authoritative body that can then be fed into other cases.

I would hope that the court challenges program, in cases like mine, would be able to consider.... In fact, we got funding from the test-case funding committee of legal aid to do this case at the UN, so that committee has recognized that in some instances it's important to have access to international remedies after you've exhausted domestic remedies.

That's what I'm proposing.

[Rob Nicholson, Conservative, Niagara Falls, ON]

My thanks to all of you.

I assume you would be looking to see that the new government is including some areas within provincial jurisdiction, like housing, some family law matters, and some aspects of poverty. I assume there would be unanimity that the government should be funding that as well.

[Michèle Biss]

It's an interesting point that you bring up, but I think it is important that we don't lose sight of the fact that under international human rights obligations all levels of government are responsible for poverty. Every level of government is responsible for the right to housing, the right to food, the right to life, as Bonnie points out, that people aren't living on the streets a block from Parliament. It's all levels of government that are responsible here. There is a role for provincial, territorial, and local governments to play.

We can't lose sight of the fact that the federal government has an important voice here. That's one of the reasons we're excited about the court challenges program, because it gives us the ability to speak to systemic issues. It gives us the ability to use the charter to say there is systemic discrimination against people living in poverty and people who are homeless. It really pertains to all levels of government.

[The Chair, Liberal, Anthony Housefather]

Thank you.

Mr. Hussen.

[Ahmed Hussen, Liberal, York South—Weston, ON]

Thank you, Mr. Chair.

I'd like to thank you all for coming in and bringing forward your suggestions with respect to moving forward with the court challenges program.

I'd like to begin with Ms. Biss and Ms. McLachlan, but afterwards also I'll open it to the rest of panel. My question is with respect to what you've indicated to be our international human rights obligations and the need, as we modernize the court challenges program, to expand the scope of the program and open it to claims beyond section 15, and also dealing with poverty and homelessness.

Budget 2016 puts aside $12 million over five years to revive the court challenges program. If you combine that with existing federal investments, total funding will be $5 million a year for an expanded and renewed court challenges program. Do you think that amount of funding annually is adequate to deal with an expansion of the scope of the program, in addition to also dealing with provincial and territorial issues?

I'll begin with you, Ms. Biss, but the rest of you can also answer that question.

[Michèle Biss]

Yes.

When it comes to the nitty-gritty facts I will defer to my very learned colleagues about the ins and outs of dollars and how much needs to be allocated to the program. Because it was in 2006, I have never had the opportunity as a lawyer to use the program.

That being said, it's interesting you bring up budget 2016 and the funding allocated, because there's a way in which this program works in conjunction with so many other programs that are needed to address these issues, such as the way that we need adequate funding for a national housing strategy and a national anti-poverty plan, all of which use human rights as their fundamental framework. Those dollars are so important but they have to work in conjunction, in collaboration, with many other policies and laws that also work for people living in poverty.

[Ahmed Hussen, Liberal, York South—Weston, ON]

Mr. Porter.

[Bruce Porter]

It's an important point. Clearly it's not going to be enough money, but on the other hand if we have a limited pot, I think the most important principle is to ensure that we're able to be involved in the most important cases and to do the best job that we can in those.

From the standpoint of poverty issues, if the most critical case around the interpretation of section 7 happens to end up, as it may very well end up, being a provincial challenge or a territorial challenge, it's so critical that we be able to participate in that case. That's where the issue will be determined by the Supreme Court of Canada, and then, as Bonnie Morton pointed out, it will bind all governments. It's not an efficient kind of restriction to say that we can't deal with the most important cases simply because they are provincial or territorial. It's going to make the job tougher for the panel to decide which ones get funding. Presumably when they have a more expanded mandate, they will be able to select the most important cases.

[Ahmed Hussen, Liberal, York South—Weston, ON]

Ms. Morton.

[Bonnie Morton]

I guess I'd just like to remind everybody at the table that Canada cannot ratify these covenants unless every province and territory agrees to uphold the rights within. That happened in 1976. That binds our provinces and our territories equally to the commitments made within that International Covenant on Economic, Social and Cultural Rights.

It's a companion document to the civil and political rights. It was never meant to be one having more power or more jurisdiction over the other. They were to be equal documents. Social and economic rights have been lagging behind. It's time that they were brought up as equal and as valuable to civil and political rights within our courts. Is it going to take time? It probably will. Every one of our provinces and territories have a legal obligation to uphold these rights.

That's why it's important that money be given to the court challenges program to be able to allow litigation in those areas. There's $5 million to start this program. I'm hoping it is only a beginning for the future of the program and access to justice in this country, because $5 million is a drop in the bucket of the millions, billions, and trillions of dollars that we spend on other things in this country. Let's bring equality equal, and let's not put a limit and a price on it. This is a beginning, and I hope it's just a beginning and that we're not going to stay stagnant at $5 million for 10 years.

[Ahmed Hussen, Liberal, York South—Weston, ON]

Thank you.

Do I have time for one more question?

[The Chair, Liberal, Anthony Housefather]

You can ask one member of the panel a very brief question.

[Ahmed Hussen, Liberal, York South—Weston, ON]

Okay.

Mr. Porter, I'd like your view on how we can guarantee the independence of the program moving forward, in terms of not being at the mercy of funding cuts or just removal of the program, as happened in 2006. Do you have any thoughts on that?

[Bruce Porter]

I'm afraid I'm going to be a bit like the previous panel and say that I don't have the magic bullet, but I think legislative enactment of some sort would at least make it seem to be more permanent. As the previous panel pointed out, I think once we have it restored, we'll do our best to make sure that no one will ever want to part with it again.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Mr. Rankin.

[Murray Rankin, NDP, Victoria, BC]

Thank you.

I'd like to thank everyone for coming. This is a very provocative panel.

I want to build on a question that Mr. Hussen asked. I was thinking about how in 1993 we had a case called Rodriguez, which was decided against the person seeking physician-assisted dying. Last year we had a unanimous court that overturned it. Many years ago we had the Gosselin case in the Supreme Court, the section 7 poverty case; I can see you're all nodding. Section 7 is about the right to an adequate level of social assistance. She was challenging a Quebec law that took rights away from citizens under 30 to receive social security benefits, and she lost in that case.

Is it your view that the court challenges program should provide funding for cases like that, which might be decided quite differently today, just as the Rodriguez case was decided so vastly differently later? Do we suggest, as a committee, that the court challenges program earmark money for poverty law cases? You heard the last panel saying that we have to decide what the best section 15 case is. Whether it's sexual equality, or racialized minorities, or disability, let them figure it out, because they will make the right decisions. Or should we swing at the fences and actually command that this process include money earmarked for poverty law cases so that we can change some of the precedents in the poverty law area, just as had occurred in the physician-assisted dying context?

That's for anyone, but perhaps Mr. Porter could start, please.

[Bruce Porter]

I couldn't agree with you more. The Gosselin case left the issue open. We've only had two statements from the Supreme Court of Canada about whether section 7 includes social and economic rights. First was in Irwin Toy, where they left the issue open, and then in Gosselin; eight of the nine judges went out of their way to say they were leaving this open in another case. It was a very specific circumstance related to access to workfare and so on in that case.

It's kind of shocking that in 30 years of the charter we've only had one case in which the court looked at that issue. It's still open, and we haven't had the chance to re-argue it. As was mentioned earlier, homeless people seeking to address that issue in the Tanudjaja case were denied even a hearing on the evidence. So yes, the idea that....

I mean, this is sort of what the program did in the past. There wasn't a specific earmarked amount of funding, but as Bonnie Morton pointed out, it noticed that poverty issues weren't getting the attention they deserved and took measures to work with the communities to bring cases forward. That's what would need to be done.

[Murray Rankin, NDP, Victoria, BC]

What I want to know is this. In your judgment, should we actually say as a justice committee, should we choose to do so, that there ought to be some earmarked funds to deal with this gaping problem of poverty law? Or should we just simply leave it as another one of the equality-seeking issues that the court challenges program can decide with regard to section 15 and section 7 litigation decisions?

[Harriett McLachlan]

Speaking as a person who's lived in poverty for such a long time, and as a social worker, poverty intersects so many different people for so many different reasons. My response is yes, but let's remain flexible and let's make this more explicit. People don't talk about poverty, or if they do talk about poverty it's in degrading ways. I think earmarking would help provide some legitimacy and would support something that's been dismissed for too long, where people living in poverty are degraded. At the same time, it has to remain flexible. Poverty is so broad, and intersects so many people from different walks of life. I think that's an important thing to consider.

[Murray Rankin, NDP, Victoria, BC]

An example of a section 7 homelessness case occurred in my riding. People in Victoria, B.C., were granted the right by the court to sleep in the parks, because there was no other place to stay. We have a housing crisis.

I'm looking to you, Ms. Morton, to answer this, because I thought you made an excellent point when you talked about how in the past we could have had litigation under the Canada assistance plan, but then those standards were removed and we now have the famous social transfer. The federal government gives money to the provinces to spend however they wish, it seems. We might have the ability to go after your social and economic rights if we were to suggest that those transfers have strings attached and actually get spent on the things they were supposed to be spent on, like homelessness and that sort of thing.

Are you suggesting that we make recommendations to make sure that we have greater hooks on which to give the court challenges program the ability to go after poverty issues like that one? Is that what I heard you testify?