Evidence of meeting #6 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 quebec.
A recording is available from Parliament.
Associate Professor, Osgoode Hall Law School, York University, As an Individual
It is the reality, and whether we worry about the watering down of section 15, I don't think that should be a reason to create formal restrictions on the ability of funded parties to argue other sections.
NDP
Murray Rankin NDP Victoria, BC
Another point you made I'd like to run by Ms. Boudreau, if I could, and Professor Foucher may wish to comment.
You commented that in 2004 there was a third party review that Professor Bhabha did of the court challenges program. That got me thinking about the many reviews that might have taken place on aspects of the language rights support program. For example, on the alternative dispute resolution component, has there been a third party review of the effectiveness of that aspect of a settlement and therefore one of the components of your program? Has there been any third party review undertaken as to its efficiency?
Director, Language Rights Support Program (LRSP)
Yes, as per normal, the program was evaluated after five years by Canadian Heritage. They did an extensive review of the five years of the language rights support program. I've seen a copy of that report, but it's not yet been made official and public. It hasn't been published yet, but maybe if you ask you can get a copy.
NDP
Murray Rankin NDP Victoria, BC
I'll make an FOI request. Oh, I can't, it's at the University of Ottawa. It's not covered.
Analyst and Professor, Language Rights Support Program (LRSP)
No, that's the government review.
Director, Language Rights Support Program (LRSP)
That's the government review of the program. The government reviews all its programs every five years, and that was an extensive review of the program.
Director, Language Rights Support Program (LRSP)
Well, I think I can comment. Can I comment?
It's not public? No comment.
Analyst and Professor, Language Rights Support Program (LRSP)
All right.
Director, Language Rights Support Program (LRSP)
All I'm going to say is that it was very positive in the efficiency of the program, and they had recommendations on certain aspects. You may be able to get a copy.
NDP
Murray Rankin NDP Victoria, BC
The reason I'm asking is that I think it's a creative aspect of the program, the fact that there is an ADR requirement, and it's something that might well be a recommendation for the court challenges program that the aspect be taken into account.
Professor Foucher.
Analyst and Professor, Language Rights Support Program (LRSP)
That's a question that comes up frequently. I did some research on the American literature. Since Professor Owen Fiss's paper called “Against Settlement”, where he argues against ADR for constitutional cases because it's public, whereas mediation is private, it is non-compulsory. Judgments are compulsory, and it is about the Constitution and not only about a private dispute between two parties; it concerns the state. There's an ongoing, raging debate in American doctrine about the appropriateness, la pertinence, of ADR in constitutional cases.
From what I gather, from what I've read on the topic, it's that American judges try to settle the cases after they go to court, but nobody imposes mediation before going to court. We have within the LRSP a structure where mediation will be funded after the case. But we also have the obligation in our contribution agreement. Parties who want to get the funds for litigation must first go though a mediation process funded by the LRSP. This is the aspect that is problematic. It doesn't work very well. Lawyers are resistant to it. After the case is introduced in court, sure, everybody wants to sit down at a table presided over by a judge who tells the parties to try to settle the dispute. But before, that's a problem.
Associate Professor, Osgoode Hall Law School, York University, As an Individual
Can I speak to this point as well?
Associate Professor, Osgoode Hall Law School, York University, As an Individual
Then I'll just quickly say, I want to echo the concern around forcing mandatory mediation. I believe in ADR. I spent three years as a vice-chair of the Human Rights Tribunal of Ontario where I conducted over 200 meditations in human rights anti-discrimination cases. I believe that anti-discrimination cases can be settled, but I think it's a problem for the reasons that have been mentioned to require it as a condition of funding and to institute it. I'm not surprised to hear that it hasn't been working very well on a practical level. I think it can pervert the relationship between the lawyer and the client and it can create pressures of the sort that are not ideal.
Having said that, ADR is a very useful mechanism to manage minimal resources or fixed resources in a context of over-demand on those resources. I don't want to disparage dispute resolution mechanisms, but I would not recommend that you continue this condition or that you apply it. I think it's even more problematic, or perhaps it's problematic for different reasons in the equality rights stream, to impose mediation for reasons that Professor Fiss and others have written about, the dangers of settling fundamental rights.
Liberal
The Chair Liberal Anthony Housefather
Thank you very much for that very complete answer. I have asked the analyst if we can get a copy of the Canadian Heritage report for the committee.
Mr. Bittle.
Liberal
Chris Bittle Liberal St. Catharines, ON
Professor Bhabha, you spoke eloquently of the importance and the significance of the court challenges program, but as we've seen, its funding depends on who is in government at the time.
Is there any mechanism such as an endowment that you feel would be helpful to ensure that there is continued and uninterrupted funding for this program, regardless of who is in government?
Associate Professor, Osgoode Hall Law School, York University, As an Individual
I've argued in my published writing, in the article I've promised to share, that it very well may be that the court challenges program is integral to the rights of the charter itself. In other words, it may be that the court challenges program could be viewed as being constitutionalized. If there were some way to constitutionalize the program, it would benefit from being tied to the text it is designed to promote. How that is done is another issue. I don't know that courts would be willing to pronounce on that. I think there would have to be an initiative from government.
What I observe through my personal experience in efforts to resist the cancellation of the court challenges program is that the language rights program was a lot less fragile than the equality rights program. This may be because of some of the differences in the way it's statutorily entrenched, with a commissioner for language rights established. The signal from the legislative side has been far stronger to committing to instituting language rights protections in a way that enabled that program to be salvaged through negotiations with the government, in ways that the equality rights communities were completely unable to accomplish.
I share your concern about the future of any program that might be adopted, and I would urge that such a program be protected. I don't have more than that. I haven't thought through any more suggestions on how you could either constitutionalize the program or ensure its protection from further cancellation.
Liberal
Chris Bittle Liberal St. Catharines, ON
You mentioned your 2007 publication. We've talked about it a couple of times. In it, you mention that the exclusion of the poor and other disadvantaged persons from the justice system is not a problem for the poor. You said it was “a problem that threatens the entire constitutional democratic order”.
Can you explain this and elaborate on it for me, please?
Associate Professor, Osgoode Hall Law School, York University, As an Individual
If you look at what our charter guarantees by way of equality and you look at the social facts in our society, there's a major gap. As long as that gap exists, I would argue that the government and public officials have positive duties to do something about it. The program is one way to do something about it.
I suggest that it's more than simply about interest groups advancing the narrow political agendas of particular constituents. Rather, these sorts of cases that seek to bridge the gap between the needs of equality-seeking Canadians and the promises that are contained in the charter are an important function for government. I think the program is a useful way for government to vindicate the rights that it is obliged to promote through the charter.
Liberal
Chris Bittle Liberal St. Catharines, ON
Back to that 2007 paper, “Institutionalizing Access-to-Justice in Canada: Judicial, Legislative and Grassroots Dimensions”, could you tell the committee how Canada compares with other countries in regard to access to justice?
Associate Professor, Osgoode Hall Law School, York University, As an Individual
The court challenges program was unique and something to be celebrated. At the time that it existed, every time I travelled to other countries and compared notes on anti-discrimination protections in these countries, no place that I visited had anything like it. Scholars and policy-makers that I've encountered in other countries have been impressed by Canada's commitment to the charter. Of course, what I find in other countries is that they have laws on the books but also gaps in society that don't reflect those laws. Citizens throw their hands in the air and question the value of a law on paper that isn't actually realized in practice. This kind of program is a way of showing the public that the government actually does care about the Constitution and about the rights contained in the charter.
Liberal