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.
Murray Rankin NDP Victoria, BC
You get what you pay for in so many things in life.
You don't see a problem therefore in balancing between...? A section 15 case could have impact on other groups, but a case involving disabled women is not like a case involving a racialized minority or same-sex rights. How do you explain to equality-seeking groups that you're going to take this one on when it seems that nothing on the face of it has to do with their issue, but it could advance section 15 generally? That's a hard job.
Clinic Director, Metro Toronto Chinese and Southeast Asian Legal Clinic
To be fair on this, I think that was the least of our problems. Partly it's because we had a very strong network of community members who are in support of the program. There were conversations, dialogues, and case consultation and case networking, so there was a lot of trust among the different groups that we were not going to do anything that would jeopardize anybody else.
We also recognize that everybody in Canada has issues. There's no hierarchy of equality or inequality. I don't think that is a problem, but the problem is often the limited funding. For instance, DAWN may have 10 cases, but we can fund only one of them.
NDP
Murray Rankin NDP Victoria, BC
I want to drill down a little into the practical problem of evidence.
I want to go back to the point that was made about the fact that expert witnesses can often provide this free or for modest fees, but once again, you might need the top expert who is in fact not prepared to give away his or her time. Is this something that we should be alive to here? In other words, should there be an expanded budget for the evidence required in these complicated cases? Or is that asking too much?
Member, Honorary Advisory Board, Egale Canada Human Rights Trust
I think they should have the flexibility of being able to fund expert witnesses, but I will tell you that in the equal marriage challenge that I did, my budget was $500 for expert witnesses. The government spent $400,000 on expert witnesses, and I won.
Member, Honorary Advisory Board, Egale Canada Human Rights Trust
That's right, and they're not always.
May I say that a lot of these issues.... Here's where we really face a problem. In some of these cases, it may be that the expert you really need.... I'm doing a case right now dealing with access to sterile injection equipment in prisons. The best model for that is Switzerland. I have to get an expert from Switzerland if we're going to be able to advance this case. That's going to cost for his time but also for his transportation to come here. There does need to be some money for experts.
Liberal
Colin Fraser Liberal West Nova, NS
Thank you very much.
Ms. Hutchinson, you can go ahead and answer the question, briefly.
President, DisAbled Women's Network of Canada
I have one very quick comment. In our organization, there are a lot of women who have lived experience, but there are also women with academic backgrounds and expertise who have spent their lives educating themselves, yet they're often expected to give away that expertise and that education for free.
That is a justice issue. Their work is not funded. They're expected to give it away for free. They get kicked in the teeth every time—“why don't you get a job?”—but nobody will pay for their work. That is an issue of justice.
Liberal
Colin Fraser Liberal West Nova, NS
Thank you very much for that answer.
Thank you to all of the panellists for attending today and providing us some very helpful information.
Ms. Hutchinson, you mentioned that one change you'd like to see is different streams. You mentioned the equality stream in particular, and it goes beyond just section 15. I'd like you to expand on that. We've heard some mention, obviously, of how we should be looking at section 7 as well, but are you thinking even beyond that? What did you mean by expanding on the equality rights beyond section 15?
President, DisAbled Women's Network of Canada
I'm weak on this because I'm not a constitutional lawyer, so I'm going to look to my colleagues for help in this. My understanding of section 7 is that it talks about access—and help me with this, please—and that it's access to income support, access to housing, and access to the fundamental social contract with Canadians. It is access to immigration.
People with disabilities have problems accessing all of those things. In DAWN Canada, and also in the other organization that I'm president of provincially, which is the Alberta Network for Mental Health, we spend our daily life on this. Our mandates are subsumed by people in basic needs crises. We have no way of protecting people's access to those support services and benefits. There's no way for us to advance people's rights in those areas. It's a constant issue for us.
Liberal
Colin Fraser Liberal West Nova, NS
Thank you.
If I can turn for one moment to you, Ms. Go, in your presentation, you talked about some issues that are still live issues that need to be determined by the court. You mentioned section 15 issues. You said that especially in regard to a criminal law context with race-based situations, there are still some uncertainties in the law.
What do you see coming that needs to be determined by the courts in those situations?
Clinic Director, Metro Toronto Chinese and Southeast Asian Legal Clinic
Hopefully, with the reinstatement of the court challenges program, many of the issues.... For instance, there are issues around carding, which is police racial profiling, and issues around the overrepresentation of aboriginal and African Canadians in the criminal justice system. There are a lot of issues at both the provincial and the federal level, whether they're under the Criminal Code or the Police Services Act, that are ripe for a challenge under section 15, but of course under section 7 as well—that would be another example—and under other sections of the charter that deal with criminal issues.
I think that's why some of the groups are advocating for looking at cases that will advance substantive equality irrespective of which section is being argued under the charter, as opposed to looking at just section 15. My view is that I think section 15 should still be the anchor section, but that we should also fund arguments under other sections, whether it's section 7 or section 8, or section 12 in some of the immigration cases, if they are used to advance substantive equality.
Liberal
President, DisAbled Women's Network of Canada
I have one addition to that. There is also discrimination by diagnosis. As I talked about overrepresentation with criminal cases, there would be brain-injured and mentally ill people. They are also overrepresented as victims of violence, and it's often because they lack access to income support. That would be again that mix-up of section 15 and section 7 rights.
Liberal
Colin Fraser Liberal West Nova, NS
Thank you very much.
I will turn to Mr. Elliott. Mr. Rankin had asked a question that prompted an answer regarding merit. I know you mentioned that in your presentation, and Ms. Go touched on it as well, that merit needs to be looked at in a case in order to determine the best allocation of resources to get the best bang for the buck, so to speak.
I'm wondering how this worked previously under the old iteration of the court challenges program, and if you're suggesting any changes should be made with regard to judging the merit of these cases.
Member, Honorary Advisory Board, Egale Canada Human Rights Trust
What happened under the old program was that merit was assessed by independent experts. I will say—and I don't want to make Ms. Go blush—they did a pretty good job of picking the merits of the case.
I am led to believe that the similar process that's used now with the language rights support program is also working really well. There is a relationship of trust that builds up between the experts and the community groups, especially through these intersectional consultations.
What was frustrating for us under the old program were the restrictions that were put on that flexibility, the artificial distinction between section 15 and section 7, for example. That's probably the biggest problem because the jurisprudence under section 7 has exploded.
You're talking about intersectional issues like the Insite case from British Columbia, for example. There you're talking about injection drug users who are often indigenous people, who are often people with disabilities, with mental health issues, and they needed access, for their health needs, to clean needles. That was a section 15 and a section 7 case, but if Ms. Go was back with the old rules, she would have to say you need to parse those issues in order for us to fund. It's a ridiculous situation.
The other problem we had was we had some really important cases like Vriend and M. versus H. that involved provincial legislation. They were very impactful. The federal government was there arguing in those cases, and may I say, I was very glad they were supporting us in the Vriend case. They had a stake in what was going on, but Ms. Go didn't have the ability to fund those important cases because they were provincial jurisdiction.
Clinic Director, Metro Toronto Chinese and Southeast Asian Legal Clinic
Can I talk very briefly about the...?
Liberal
The Chair Liberal Anthony Housefather
It has to be very brief because we have to switch panels. This will be the last comment from this panel.
Clinic Director, Metro Toronto Chinese and Southeast Asian Legal Clinic
The panel was also supported by a very good staff component, and they do a lot of research to analyze the case and analyze the merits of the case. Some of the research is outstanding. The research should have been made available to the parties as well.
That is the research that talks about the substantive equality and how the arguments can be improved. That makes the decision of the panel much easier.
Liberal
The Chair Liberal Anthony Housefather
Thank you very much, Ms. Hutchison, Mr. Elliott, and Ms. Go. Thank you so much for your contribution. We will take all of your words and your briefs under advisement. Again, the presentations were very interesting, and we really appreciate it.
Member, Honorary Advisory Board, Egale Canada Human Rights Trust
Thank you, Mr. Chair. I'm happy to answer further questions from any of you.
Liberal
The Chair Liberal Anthony Housefather
I'd like to ask the members of the next panel to come forward. We'll have a short break as we exchange panels.
Liberal
The Chair Liberal Anthony Housefather
I would like to welcome all of our witnesses on our next panel. Thank you so much for coming. The committee very much appreciates your coming to Ottawa to convey your views to us.
I would like to introduce Mr. Bruce Porter, who is the executive director of the Social Rights Advocacy Centre. From Canada Without Poverty, we have Harriett McLachlan, who is the president of the board of directors, and Michèle Biss, who is the legal education and outreach coordinator. Welcome. From the Charter Committee on Poverty Issues, we have Bonnie Morton, who is the chairperson and who, I understand, was previously on the panel for the court challenges program.