Justice Committee on March 8th, 2016

[Rachel Wernick]

There was a variety of rights-based organizations. There were 290 groups that received funding. We tried to look at the top groups. The highest number of cases, representing about 20% of the total caseload, was for the Women's Legal Education and Action Fund, Egale Canada, the African Canadian Legal Clinic, the Center for Research-Action on Race Relations, and the Council of Canadians with Disabilities, but it spanned a lot of groups.

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

My final question is with respect to the court challenges. Was there a lot of international coverage as well with respect to relationships between Canada and international human rights per se that related to the program and the cases that were brought forward?

[Rachel Wernick]

I guess there's one way I could answer that. I recently went to Geneva to appear before the UN Committee on Economic, Social and Cultural Rights. That's an example of one the international treaties that Canada has signed on to and where in the past they have commended Canada for the CCP. In their most recent report, they called for its reinstatement.

Am I answering your question? The international dimension, I guess, would be the international treaty obligations that Canada has signed, and this could be seen as supporting our fulfillment of those obligations.

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

Has there been funding provided for a test case that had international elements to it?

[Rachel Wernick]

No. I don't think that would meet the eligibility criteria.

[The Chair, Liberal, Anthony Housefather]

In the Ford case in the 1980s on the language of signs, there was a UN judgment saying that Quebec's ban on English signs violated the UN International Covenant on Civil and Political Rights. Was that not a funded case that then did have international implications? There was a judgment at the international level after the notwithstanding clause was invoked.

[Michel Francoeur]

You're right. The issue of signage in Quebec in the Charter of the French Language made its way in Canada all the way to the Supreme Court of Canada, which struck down the provisions, at least those that prohibited the use of any language other than French on signage. The Bourassa government of the time decided to use the notwithstanding clause to enable the use of other languages inside the businesses, indoors, as long as French was predominant in comparison to other languages.

Pursuant to that bill, the matter ended up before the Human Rights Committee of the United Nations on the basis of the International Covenant on Civil and Political Rights. It's important here to say that those conclusions of the Human Rights Committee are not binding in law in Canada, but nevertheless, the committee did conclude that the Charter of the French Language, by prohibiting the use of other languages, was contrary to some provisions of the International Covenant on Civil and Political Rights.

[The Chair, Liberal, Anthony Housefather]

We've finished our first round of questioning. We're now going to move to the second round.

In the second round, just for everybody's knowledge so that you have your order, there's a Liberal intervention, a Conservative intervention, a Liberal intervention, a Conservative intervention, and then an NDP intervention.

I'll be as flexible as I can be if the NDP needs more time.

Mr. Hussen.

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

My question has to do with the groups that were under-represented among the users of the court challenges program. Which groups were the most under-represented among the users of the program? In other words, which groups used the program the least?

[Rachel Wernick]

I'll answer the question indirectly by giving you the data that I have. We have it grouped by issue and then the number of cases.

The highest number of cases was under colour, race, ethnicity, and nationality at 71, and then it was sex and gender equality at 60, sexual orientation at 40, linguistic at 39—the first linguistic says “various” and the second one is linguistic education—aboriginal at 27, poverty at 27, and then disability at 20. So I guess on some level the answer would be “disability”, but in terms of just the number of cases. It's not a judgment on the impact of the case or the narrowness or the broadness of the scope of the case. It's just the areas.

Is that helpful?

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

Sure.

Also, why do you think certain groups are more likely to use the program than others? Is it a question of knowledge of the program, accessibility issues? What, in your experience, leads to some groups being more likely to mount charter challenges than others?

[Rachel Wernick]

That's a very good question.

As I mentioned earlier, we have the broader issue of financial barriers, so that may be represented there to some degree. The NGOs play a role in helping individuals to navigate the program and the system, so if there's an organization that can help them, they're probably more likely to bring it forward.

I don't have more specific data on which areas would have had particular barriers.

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

Finally, could you speak a little more on the financial barriers? You don't have to be specific, but can you elaborate a bit on the financial barriers that you touched on?

[Rachel Wernick]

I think it's just in the general sense that the biggest barrier to accessing the justice system is financial. If there's a program that provides some financial relief to pursue a case, then you're going to be helping people who would not have otherwise pursued it because they didn't have financial support.

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

Thank you.

[The Chair, Liberal, Anthony Housefather]

I try not to intervene too much, but I want to understand. I'm going to try to follow Mr. Hussen's comments to perhaps try to boil them down a bit differently.

With respect to the program for equality rights, when it did exist, and, today, with the new, more defined language rights program, which could theoretically be part of a broader court challenges program, I think what he's saying is that probably more groups than individuals have made applications because they have greater knowledge about the program.

What I think he's trying to come down to is that if the court challenges program were reintroduced, what could be changed to make more Canadians who are individual litigants, and groups that may not have applied very frequently because they don't really understand the program and don't have specialists, more aware of the program and more able to apply for it?

[Rachel Wernick]

That's a very good question and another important area to explore as we do our option development and policy development.

I do think it's the rationale behind the activity stream that was around promotion and awareness. There was dedicated funding to promoting the program itself. Obviously, that's often a challenge in government. If people don't know the program exists or they don't understand it, they're not going to use it.

It's another area where times have changed. When you look at the old reports on the program, its brochures and pamphlets, maybe in the modern context of social media and the web, we'll be able to explore different avenues for promoting the program and ensuring that more Canadians understand that it exists, what it is, and how to access it. It's definitely an area to continue to push in terms of modernization.

[Yvan Déry]

In fact, both programs have had this promotion element. It's as much a promotion of the program itself: what help the program can bring to groups or individuals seeking redress of their rights. It's also a promotion of the rights themselves. The new program, the language rights support program, is using the web extensively. You're welcome to go to the website. You have little capsules where people are explained their rights, what recourse they have. They talk about the different types of rights that they do cover.

On top of that, they organize forums; they organize colloquiums. They participate in colloquiums around the country. That does cater to a much more precise, let's say, type of stakeholder. The idea of promotion is out there. The new program is doing a great job on that, so the next program will do even better.

[The Chair, Liberal, Anthony Housefather]

Mr. Cooper.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

In 1985, when section 15 came into effect, a House of Commons committee that was tasked with examining the implications of section 15 cases noted that there were basically individuals up against government departments and agencies. That committee concluded that there were barriers to individuals pursuing section 15 litigation.

What we have seen in terms of the litigation around section 15 since 1985 is that in many cases it has been advanced by groups, not individuals. Perhaps you could confirm that the vast majority of cases that were supported by the court challenges program were groups and not individuals.

[Rachel Wernick]

I think as I indicated in the presentation, the data we have is that between 1994 and 2006 about 53% of the applications were from groups and 47% were from individuals, so it was fairly balanced.

[Yvan Déry]

If I may add something, often it's a group that will go to court. They are a group; they have resources; they have a board and they can make decisions, but, ultimately, the decisions that they gain from the courts are applicable to individuals.

In the language rights world, a sizable number of cases revolve around education. Often you have parent associations that will speak for school boards and they will go to court so that children will have access to an education of equal quality, etc. The school boards have the right to make decisions as to who does and who doesn't get into, in this case, a francophone school.

With all these decisions, albeit spearheaded by groups such as parent associations or groups of that ilk, the ultimate goal is to get decisions that will have an impact on individual parents or individual children. So the vehicle to get a court decision is often a group, but the impact goes beyond the group that is going to court.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

So, again, a clear majority of cases were by groups and not individuals. Shortly, thereafter, it's my understanding—and you can correct me if I'm incorrect—the court challenges program began to fund outreach programs to not only support groups or individuals who were putting forward section 15 cases but in many cases establish certain groups or promote certain groups to in turn instigate litigation. I think somewhere in the neighbourhood of 15% of the budget of the court challenges program was directed to that as early as 1989.

Could you maybe comment on that?

[Rachel Wernick]

First, to come back a little to what we were talking about under the promotion and access stream of activities, I think that's what you're referring to. We're talking about small amounts of funding that were made available for organizations to carry out case development or impact studies. I think this is what you're referring to.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Yes.