Justice Committee on May 19th, 2016

[Bonnie Morton]

Today my presentation has been mostly around the reinstatement of the court challenges program and what it should cover, but I fully support our putting some ties into transfer payments that go to provinces.

I think that the government should reopen—and this is a form of access to justice—conversations with provinces and territories and set out what those standards will be because the CAP agreement, in 1966 when it was brought in, helped to standardize poverty across the country. Not that standardizing was good; it's not, but it helped to level poverty out across the country. Since CAP has been removed, we now have poverty in different levels all over the country and we need our federal government to negotiate with the provinces to bring some standards back into government programs and policies. That might even stop us from having to go to the court challenges program for funding because we could handle it in some other way.

[Murray Rankin, NDP, Victoria, BC]

Or, if not, at least you would have legislated standards against which you might have the ability to make lawsuits to deal with homelessness and poverty, and the court challenges program might rise to that occasion.

[Bonnie Morton]

Well, I do poverty advocacy in my home province because legal aid doesn't do it. What we used to do with the CAP agreement was use that when we were arguing cases. It got no farther than local and provincial appeal levels; it never got farther.

[The Chair, Liberal, Anthony Housefather]

We're going to pass it to Mr. McKinnon for the last questions.

Mr. McKinnon.

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

Thank you, Chair.

Thank you to all the panellists for being here and for your excellent presentations.

I'm rather intrigued about the focus all of you have put on the idea of funding access to international mechanisms. I think this is unique to this panel.

Mr. Porter, you've specified that it should be available in appropriate cases. You gave us one earlier. Would these be cases viewed through the lens of section 15 and/or 7, cases that you felt had been exhausted in domestic court cases, or are there other cases that you would recommend in this respect?

[Bruce Porter]

My experience has primarily been in relation to 7 and 15. Our position is that there has to be enhanced flexibility but that we really need to keep in mind the focused mandate that the program had on issues of disadvantage because, as soon as it gets too broad, then I think the concerns that have been expressed in previous discussions about how you manage it when you're getting too many applications, how you really select....

I think it is important for this committee to direct that the program should remain with its focus on the issues of the most seriously disadvantaged, and those tend to come up under 7 and 15, but to the extent that they may arise in other sections, it may be possible to be somewhat flexible.

As I emphasized in my presentation, it's on the issue of positive obligations to address socio-economic deprivation where the Canadian courts, as Bonnie Morton mentioned, are so out of step. In those instances it can be so critical to have access to international mechanisms because they act as a corrective. The strategic goals of the court challenges program could be significantly enhanced by allowing them to fund access to international mechanisms in appropriate cases, but I see it as relatively rare. I don't see it as a massive expansion of the mandate.

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

As for those international mechanisms, you mentioned a number of treaties. Are there any other mechanisms that come to mind or is it just those particular treaties that you have in mind?

[Bruce Porter]

There are a number of mechanisms that can be used. There's the regional mechanism with the Inter-American Commission on Human Rights that has sometimes been used. There are communications procedures available through special procedures, which is the special rapporteur on adequate housing, who happens to be a Canadian, Lailani Farha, at this point in time.

These are procedures where groups can take matters to various international mechanisms and where the government is obliged to respond to communications received from the special rapporteurs. There are a number of areas where this....

Most of the groups that worked with the court challenges program in the past are now working fairly actively with international human rights mechanisms. That's why I agree with Michèle that this is a modernization issue. This is the way strategic litigation is done now. It's done in a dialogue between the international and the domestic, so the court challenges program needs to be sensitive to that kind of approach.

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

Do I have more time, Mr. Chair?

[The Chair, Liberal, Anthony Housefather]

You have time for another question.

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

I have a question for Ms. Biss and/or Ms. McLachlan regarding the extension of the program to section 7 as it pertains to social and economic deprivation. Is that the only way they should be extended to section 7...? Further to that, what other sections, if any, should be brought into this, such as section 2, perhaps?

[Michèle Biss]

That's an excellent question.

As Harriett mentioned earlier, poverty can be experienced in so many different ways, with so many different types of violations. Clearly, of course, the number one that we're thinking of in terms of extending the ambit of the program is the right to life. That one is very visible. It's one that's being used quite often. In fact, quite interestingly, Mr. Rankin mentioned the supra in the tent city case, where the injunction was not granted to disband the camp but there is still a decision to be made. One of the primary vehicles for that conversation is the right to life under section 7.

That being said, there could potentially be some openness to talk about other sections of the charter, namely, I think, section 2, freedom of expression for people living in poverty. As we all know, for people living in poverty, there are certainly some barriers to joining the public fora.

When you think about it, this panel is quite unique. We have two members of this panel with lived experience of poverty joining this conversation. Truly, can you say when the last time was that you experienced, on the Hill, that conversation with people living in poverty? There are real barriers to freedom of expression that have manifested in different ways for people of poverty. For freedom of association, there's also a possibility that there are charter rights claims that affect people in poverty. There is certainly an option to open it up to different sections of the charter.

Looking at it right now, with the exception of funding, that's where I think my arguments, certainly from the CWP's perspective, are certainly primarily focusing on section 7, as that is the most visible one. It is interesting that you mention there is perhaps some opening down the line to look at section 2 and perhaps other sections of the charter. Different indigenous groups have also marked certain sections of the charter where they think it could be open to that as well. It's interesting that you point that out.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Thank you to the panel for your interventions. We very much appreciate it. We'll read your briefs carefully.

I wish everyone a wonderful day.

The meeting is adjourned.