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.
Conservative
David Tilson Conservative Dufferin—Caledon, ON
Both Ms. Go and Mr. Elliott referred to the issue of funding for litigation. This has been a problem for all groups. The only one I'm familiar with, which was a long time ago, was the legal aid system in Ontario, which has always been underfunded. There have always been a whole bunch of people who cannot get funding, and as a result they represent themselves, which in turn drives the legal system crazy because the poor judges have to be fair. It makes the cases longer. It may even create some discrepancy between parties, I don't know.
Ms. Go in particular asked for expanded coverage for provincial laws. Wouldn't a lot of that be done through provincial legal aid? The only one I'm familiar with is the Ontario system, but I'm sure they are identical throughout the country. My question is for both of you, if we have time.
Clinic Director, Metro Toronto Chinese and Southeast Asian Legal Clinic
I come from Ontario, and in a way we are very privileged. The Ontario system is a far superior system compared with other provinces. Ontario actually has test case funding. During the time when court challenges weren't around, a lot of groups actually looked to the Ontario test case funding to seek funding to do charter litigation.
Whether or not legal aid is properly funded, the fact is that even in provinces where there is legal aid, they do not always fund test case litigation.
In a way, having test case litigation may address some of the issues of under-resourcing of legal aid in the sense that the test case funding is a way of addressing an issue that affects a large number of people, whereas without the test case, every single person will be subject to the same unjust law, or the same discriminatory law, or having the same problem with law, and they go before the court over and over again and they will require legal aid over and over again.
The idea of test case funding is to make the law better so you don't have as many people appearing before the court or as many problems, which will result in having people appear before the court.
I also want to speak briefly to the consultation issue. It is not just about addressing, for instance, challenges within a particular community. Case consultations are allowed in different groups. For instance, even if I'm just going to launch a charter challenge on the issue that affects immigrants alone, case consultations allow the various groups to come together to talk about whether or not my strategy or the strategy I'm going to use will have a negative impact on other groups. It's a very important way of engaging the communities.
Mr. Elliott talked about getting a bang for the buck as far as lawyers are concerned. You get a lot more bang for the buck as far as communities are concerned.
There are hundreds and thousands of hours of volunteer work that go into this kind of litigation from the community side, and it's a way of building a community of shared interests and shared goals to make Canada a better place. It's the same idea behind test case litigation as well. All of that will make the system better, and hopefully in the long run reduce the need for legal aid.
Liberal
The Chair Liberal Anthony Housefather
Thank you.
I think that answered the question. We're going to move now to the Liberals.
Ms. Khalid.
Liberal
Iqra Khalid Liberal Mississauga—Erin Mills, ON
Thank you, Chair,
Thank you to the presenters and the information you have provided us today.
Firstly, I'd like to ask Ms. Go. You had mentioned in your brief and also today about systemic racism in the system, and the possible expansion of the CCP to include section 7 rights.
Can you give us some specific examples of cases that depict these kinds of issues?
Clinic Director, Metro Toronto Chinese and Southeast Asian Legal Clinic
One example is a case that was actually argued in the Ontario court that we were involved with. It deals with the “right to housing” issue. A number of organizations intervened in that case.
There are statistics showing, for instance, among the homeless and under-housed population that there is a very high population of racialized communities—aboriginals, women, women with disabilities—so they are terribly under-housed or homeless. The challenge was the lack of a housing strategy to deal with that issue.
In that context, of course section 15 is one argument in the sense that the lack of policy has a disproportionate impact on these disadvantaged groups; but section 7 is also an issue concerning the right to security, so that issue was also being argued.
If that case were to be funded by the court challenges program, then the court challenges program would only fund the section 15 arguments and not the section 7.
I can tell you when I was on the panel, it's very artificial sometimes. You have to just ignore the section 7 thing, but in fact the two are somewhat related. I think more and more so as well, with the court coming more to a realization that equality might be a principle of fundamental justice under section 7, that the two sections are actually becoming more and more connected.
Liberal
Iqra Khalid Liberal Mississauga—Erin Mills, ON
Thank you.
We've heard testimony from a lot of witnesses over the past months as we have been studying the court challenges program and access to justice. Many witnesses have raised the concern that the court challenges program comes and goes at the whim of the government.
Can I ask all three panellists to comment on how they think we could make this program more permanent and safeguard it from the whim of the government?
Member, Honorary Advisory Board, Egale Canada Human Rights Trust
I wish I had an answer to that.
I think it is a problem. Parliament is sovereign and can always repeal a law. I'm not sure there's anything that can be done to fully guarantee it could never be changed.
Short of embedding it in the Constitution and making a constitutional amendment, so that we would have something that looked like the German constitution with an obligation to protect rights and to rehabilitate.... I would love to see that, but I don't think this committee wants to go down that road right now. Short of that, I don't have a solution.
President, DisAbled Women's Network of Canada
That would be my intervention.
When we talk about different intersections, the one I also want to touch on is immigration of people with disabilities. That's another intersection where people with disabilities struggle tremendously, and that is another point of intersection that has to be addressed.
When we talk about housing, the right to housing, the right to social support, and the right to legal representation, these are all conflicting rights with sections 7 and 15. These are important places where we have to look, because there are those intersections under the charter where court challenges need to be expanded. That would be my additional intervention.
The other piece I would like to mention briefly is where we have self-represented clients, some of the places.... Ontario has such a rich access to legal aid. I deal, in the DisAbled Women's Network Canada, with people from all provinces. I live in Alberta, where we do not have such rich access. The volunteer legal programs have.... The volunteers can't do anything. It ends up that I—
Liberal
The Chair Liberal Anthony Housefather
Ms. Hutchison, I'm sorry, but could I bring you back to the question, which is how to safeguard the program?
You're answering a different question, and that's taking away time from this side.
Can you come back to the question that was asked? The question that was asked was how to safeguard the program from the whims of government.
President, DisAbled Women's Network of Canada
Sorry...embedded in the Constitution.
Liberal
The Chair Liberal Anthony Housefather
Thank you.
Sorry, I thought you had gotten into that, and then you....
I need to make sure everybody's time allocation is fair.
Ms. Go.
Clinic Director, Metro Toronto Chinese and Southeast Asian Legal Clinic
I don't have a solution.
I think that as more and more Canadians realize the importance of the program, it will also be more difficult for the government to repeal it.
Liberal
Liberal
Iqra Khalid Liberal Mississauga—Erin Mills, ON
Thank you.
I appreciate that.
We've also heard testimony from various witnesses about how the court challenges program has worked in the past with respect to which cases get funded and which cases do not. We've heard questions about the transparency of the previous system.
In what way do you think we can make the new system more transparent and more accessible?
Liberal
Clinic Director, Metro Toronto Chinese and Southeast Asian Legal Clinic
There have been different reiterations of the program. A long time ago, it was not an independent body. It was attached to Canadian Heritage through a university. It was defunded or cancelled, and then it was brought back and became an independent body.
I think becoming an independent body will give it more opportunities to deal with questions of transparency. However, at some point we also have to realize that, when people come to the program for funding, there may be situations where the applicants do not want that information made public, so we need to address that issue. Maybe if we could find a way of summarizing the reasons or types of cases being challenged, without giving out information about the individual applicant, this would make decisions more transparent.
Transparency and accountability can also be strengthened by changing the board structure or by recruiting, reaching out to more community groups. The program is still not very well known to many groups out there, even though it's been effectively going on for 10 years. Aboriginal groups and racialized minority groups, for example, are not as familiar with the program.
As the program membership grows, the accountability structure will get stronger. As the program becomes accountable to more communities, it will need to be more transparent. Some funding is required for outreach and promotion.
Liberal
NDP
Murray Rankin NDP Victoria, BC
Thank you, Chair.
I'd like to say welcome to everyone. It's nice to see you again, Mr. Elliott. I can attest to the excellence of Egale Canada and their legal advocacy. I had the honour of working with Egale during the same-sex marriage case back in 2003.
I want to talk about money, because that seems to be the topic du jour here.
In your brief, Mr. Elliot, under the heading, “Leveraging the Private Sector”, you talked about cross-subsidization by small and medium-sized law firms. You said expert witnesses are key in section 15 litigation, and often provide their services free or for modest fees. You pointed out there's a heavy evidentiary burden in section 15.
I'd like all witnesses to talk about how we're going to divide a very small pie. Do we take one or two cases? I think you've suggested a $225,000 funding cap for litigation. That may be a reasonable number, but I can tell you we're not going to get many cases done.
Ms. Go, you were a panel member on the court challenges program. Can you tell us how you see it working? Will we do a few big blockbuster cases and very few others? How do we decide how to divide a small pie between equality-seeking groups?
Clinic Director, Metro Toronto Chinese and Southeast Asian Legal Clinic
We have dealt with this in different ways. One of them, as Mr. Elliott mentioned, is that we kind of have to look at the merits of the case, so not every single application that comes to us will be funded. We do have to try to find and fund cases that will advance equality. Sometimes we get maybe a few cases or several cases that challenge more or less the same issue, and in those cases we'll try to encourage the groups to work together. Sometimes we have individual applicants who have a very good case, but are not necessarily represented by the right counsel. We will also try to encourage them to reach out to people who have the expertise as well. We find all kinds of ways to leverage the little money we have.
As I mentioned, the case litigation is not the only way. We talk about case consultation and impact studies, and all of those things will enhance the value of the charter as well. That's why I talk about the necessity of giving the board the flexibility to move funds around. I remember when I was a vice-chair, one of the struggles we had was constantly having to deal with the Department of Heritage. To put it bluntly, they would micromanage. We had a funding agreement. I can't remember the figures, but we had maybe $500,000 for this or $10,000 for that, and then we always had to try to argue that since we didn't use up all of the funding in one pocket maybe we could move the funding to a different pocket so we could maximize the global envelope of funding for the court challenges program.
Member, Honorary Advisory Board, Egale Canada Human Rights Trust
Thank you very much for your kind words, Mr. Rankin.
I love the word “flexibility” that Ms. Go used. That's how the language rights support program works right now. You get really fine people running the program, who get the benefit of seeing all of these cases and seeing the trends in the jurisprudence, and they are in the best position to make the call about where we're going to have the most impact, whether there is an intersectional case or they're seeing how section 7 is evolving, and they pick the cases based on maximum impact.
If you got the sense from my presentation that I'm saying you should be focusing on fewer cases and doing them right, that's exactly our message. There used to be a $100,000 cap for trials, but I believe it's now $125,000. If you went to my firm, for instance, and asked if it would do a trial for $125,000, you know, our managing partner would have a stroke. No one will take on a case. It's better to have a realistic budget that will actually get a law firm to engage than it is to have a low budget so it looks as though you're going to be able to fund lots of cases. In fact you're not going to fund any or you're going to get really poor-quality cases because you're going to get people coming forward who will take them on because they want to make a buck even though the cases are no good.
NDP
Murray Rankin NDP Victoria, BC
Ms. Go talked about how sometimes they're not represented by the right counsel, so they might find they are with a person who will charge one-third of what someone else charges, but of course often they'll get one-third of the quality. That's a problem too.
Member, Honorary Advisory Board, Egale Canada Human Rights Trust
You get what you pay for.