Justice Committee on April 14th, 2016

[Chris Bittle, Liberal, St. Catharines, ON]

This government has talked a great deal about reconciliation and true reconciliation. We see the Charter of Rights and Freedoms and other pieces of legislation before the government, but indigenous peoples don't seem to have access to that or don't seem to be able to receive the full rights that maybe other Canadians enjoy. Is better access to the justice system through a court challenges program part of reconciliation? If I'm overreaching, I apologize, but is that a piece of a very large puzzle?

[Jerry Peltier]

However the Truth and Reconciliation Commission's call for action recommendations are implemented, if it help our indigenous people get access to justice and, finally, to alleviate this overrepresentation in jails, it's going to be welcome. We're anxious to see how the government is going to move forward in those recommendations from the Truth and Reconciliation Commission.

[Chris Bittle, Liberal, St. Catharines, ON]

Even beyond the commission itself and the specific recommendations, which the government has committed to address in a meaningful way, does the court challenges program, in your mind, build upon that and build upon that spirit of reconciliation?

[Jerry Peltier]

First of all, we're certainly pleased to see it reinstated the way it is right now. We will look at the parameters and at how far we can use the court challenges program to take a look at some of those recommendations that are in the truth and reconciliation report. If we need to use that avenue to help us put a case forward, we will do it, but we'll have to take a look at it more closely.

[Chris Bittle, Liberal, St. Catharines, ON]

I'll go back to what Mr. Falk was discussing in terms of the incarceration rate of indigenous peoples, it being nearly a quarter of individuals in custody in our prison system, which is shocking.

Can you perhaps talk a little bit about what's happening upstream? Mr. Falk wanted to focus more on the incarceration rates, suggesting that the system is working and the crime rate is being reduced.

But can you discuss the issues upstream that the court challenges program may be able to assist, which may lead to indigenous peoples not having access to charter rights?

[Jerry Peltier]

First of all, I'd like to go back to your question about the numbers that we had in our report. Those came from Maclean's magazine, and it was Nancy Macdonald who put out that information. Mr. Beaudin is the one who shared that information with us. Those are numbers that we got from Maclean's magazine, which we're quoting from.

If you go to Saskatchewan, I think in Prince Albert the number of indigenous people who are incarcerated is about....

Kim, what would you say?

[Kim Beaudin]

Unfortunately, the number in Saskatchewan of indigenous people in corrections is 85%. It's quite the number.

One thought I did have is that our organization represents 70% of people who live off reserve, and the majority live in urban centres across Canada. They come to urban centres to change their life. They come for employment, for educational opportunities, those kinds of things.

For example, we just went through a provincial election less than a month ago, and the biggest issue to me was that indigenous people are not included in the economy. That can go right across the board in Canada. What happens is that when you don't have a job, things start to spiral. I found in a lot of cases that even people who went to school and have an education still have a difficult time getting a job.

We rely a lot on corporations to employ people within Canada. For example, Cameco in Saskatchewan is one of the largest employers. I'm finding that we're just not getting those opportunities the way other Canadians are. I believe that if we break those barriers down and focus on those areas, you'll also see the incarceration rate drop significantly in Canada.

Again, I stress the economy, because I graduated from the Gabriel Dumont institute in Regina a few years ago—I won't say the date and date—and I can't believe we're still talking about these kinds of issues 30 years later. I'm concerned that when I ride off into the sunset, we'll be talking about it another 30 years from now, and somebody else will be sitting here talking to another government.

I believe we can change things.

Government can play a huge role in that as well, whether federally or provincially. It can certainly happen. It doesn't matter what stripe of party you are, we can do these things if we roll up our sleeves and get to work.

[Jerry Peltier]

Mr. Chair, can I just add another comment?

[The Chair, Liberal, Anthony Housefather]

Yes, absolutely, Mr. Peltier.

[Jerry Peltier]

In regard to the sentencing of our indigenous peoples, a decision came down a while back called the Gladue decision. We found throughout our study that many judges are not receptive to using that process. Our lawyers have to really fight hard to convince the judiciary that the Gladue decision process should be used more often.

That concerns us.

[The Chair, Liberal, Anthony Housefather]

I want to thank the witnesses very much for appearing before us. We very much appreciate your testimony today and your agreeing to appear before this panel. We're going to take a short recess to change panels.

Thank you again so much, gentlemen.

[The Chair, Liberal, Anthony Housefather]

We are going to resume. I would very much like to welcome our next group of panellists. I would like to introduce Cynthia Petersen, who is a partner at Goldblatt Partners. She is presenting as an individual. Thank you so much for coming.

We have Gwen Landolt, who is here from REAL Women of Canada as the national vice-president. Thank you for coming.

From West Coast Women's Legal Education and Action Fund, we have Kasari Govender and Rajwant Mangat. Kasari is executive director, and Rajwant is director of litigation.

We have Diane O'Reggio, who is the executive director of Women's LEAF, and Elizabeth Shilton, who is a member of the board of directors.

Thank you all so much for coming, ladies. I have explained to you how this works. We are going to go in the order that I have on the list, so we are going to start with Ms. Petersen.

[Cynthia Petersen, Partner, Goldblatt Partners LLP, As an Individual]

Thank you.

I am here as an individual. I want to make it clear that I am not here representing a particular organization. I appreciate the invitation to come and speak to the committee. I understand that one of the reasons an invitation was extended to me is that I am a lawyer in practice, and my clients had extensive experience with the court challenges program in the 1990s and the early 2000s.

I want to speak a bit to that experience, speaking as a lawyer who is a constitutional litigator, who does a lot of charter litigation, and who witnessed first-hand the value of the court challenges program and also the deficit that was created when the court challenges program was ended, in terms of access to justice for communities that are seeking to obtain the protection—and meaningful protection—of the Charter of Rights and Freedoms.

I also wanted to say that I am a member of Canada's LGBT community. I use that expression loosely, because, of course, there are many LGBT communities across Canada, but for the sake of abbreviation, I'll simply say “the LGBT community”.

I was involved in more than a decade of litigation under section 15 of the charter on behalf of LGBT communities to try to seek equality rights, and ultimately to obtain equality rights, at least legislatively, across the country. There is still, I think, a lot of work to be done on behalf of the trans community, but certainly in terms of the recognition, for example, of same-sex relationships, treating them equally with heterosexual relationships, that was an achievement that was largely gained through litigation, unfortunately. Of course, there was a lobby of governments and there were public education campaigns, which were all concurrently moving forward the civil rights movement, if you will, for LGBT communities, but litigation was key, and the court challenges program was really instrumental in being able to fund some of that litigation—not all of it, because that program, as you know, had restrictions. For example, the funding had to be only in the federal jurisdiction. There were a number of LGBT cases—key, groundbreaking cases—that were argued in provincial jurisdictions, and those were not funded by the program.

I just wanted to speak to some of the cases that were funded that you may not be aware of, because they are cases in which I was involved and clients of mine received and benefited from funding.

The Egan case, for example, was the first case the Supreme Court of Canada heard involving section 15 of the charter and sexual orientation as a ground of discrimination. It was a landmark case, in which a majority of justices of the Supreme Court of Canada ruled that gays, lesbians, and bisexuals are entitled to the protection of their equality rights without discrimination based on sexual orientation. That case did receive funding. The litigants and a number of intervenors—I represented an intervenor in that case—received funding from the court challenges program. When you think about it, the individual litigants who started that case were a couple of seniors. They were impecunious. They were seeking equal treatment under old age security legislation. They clearly would not have had the means to mount such a case without some assistance from the court challenges program.

The court challenges program also provided funding, I know, to many other cases as well, but in terms of my personal experience, to clients of mine in the Little Sisters case, which was another case at the Supreme Court of Canada, involving customs legislation; to the Rosenberg case, which involved a challenge to the Income Tax Act and was argued in the Ontario Court of Appeal; and to numerous other cases involving equality rights and affecting women and other marginalized communities, not just the LGBT community.

There is no doubt in my mind that without the court challenges program, LGBT rights and the equality rights movement for LGBT communities in Canada would never have evolved in the manner in which it did. We might have eventually reached the point where we are now—I don't want to say that it was expeditious, because it was long overdue—but it would not have evolved in the way it did.

One of the things that people may not be aware of and that I wanted to bring to the attention of this committee is that the court challenges program not only funded cases—actual litigation, litigants, and intervenors. It also funded national consultations, which were extremely instrumental for LGBT communities to be able to come together to consult at a grassroots level with communities across the country and with legal expertise, and bring lawyers together from all over the country.

I participated in two of those national consultations. One of them was here in Ottawa. I believe it was in 1995; it might have been 1996. Another one was held in Toronto. I think it was in 2000, if I remember correctly. It might have been 2001.

The funding for those national consultations enabled communities to come together and build the cases that were eventually successful in the courts. These are not simple cases. Constitutional litigation often requires a collective effort, often requiring consultation with not only legal experts but also experts from a variety of other social science fields who might be able to bring together evidence to support people's claims. Ultimately, the last case that I was involved in that received court challenges funding was the same-sex marriage litigation, which I'm sure everybody is familiar with. I was counsel to a number of same-sex couples in British Columbia who brought a case there. There were concurrent cases in Ontario and B.C.

My clients in that case would never have been able to bring the case forward without the benefit of some court challenges funding. In fact, that case received some extraordinary funding. As I recall, there were two different caps on the funding you could receive. In that case my clients received the higher cap because of the extraordinary resources that were required to put that case together. In case people are concerned about why the lawyers can't just do the work pro bono and why they should be funding this—that litigation lawyers can do it—I did want to say that the money does not simply go to line the pockets of lawyers.

I do a lot of pro bono work. At my firm, my colleagues also do a lot of pro bono work. I think it's important for the legal community to continue to do that. The funding that my clients received in those cases largely went to disbursements; very little of it actually went to lawyer's fees. Litigation is exceptionally expensive. There are court filing fees; there are fees for serving documents; there are extraordinary photocopying fees, which I'm hoping with the electronic age will start to reduce; there are fees associated with research and meetings, transportation, accommodation and so on. The money is frankly a drop in the bucket. It's seed funding. It's very helpful in getting a case of the ground, but it was never enough to fully fund the lawyers' fees, and it certainly didn't go into the lawyers' pockets.

As an example of one of the disadvantages of not having the program now, a couple of years ago I was involved in another LGBT case called Hincks, which was argued at the Ontario Court of Appeal. It involved a gay couple who had entered into a registered domestic partnership in the U.K. at a time when marriage was not available to same-sex couples in the U.K. They had entered into the only relationship that they could in the U.K., which gave them equivalent benefits to married couples. Then they relocated to Canada and separated. One of them wanted to get a divorce and to access the same entitlements that any other married couple has in terms of a division of their property and support payments, and so on. Yet, they were not legally married.

There was a question as to whether or not they could access the Divorce Act federally, and also whether they could access provincial family law legislation in Ontario.

At the trial level, ultimately it was concluded that they could, based on equality grounds and other grounds. That was appealed by the individual who didn't want to pay the spousal support and didn't want to engage in the division of property. The case went to the Ontario Court of Appeal, but the individual who had won at trial abandoned the litigation because he simply didn't have the means to continue it and couldn't continue to pay for the litigation. This very important case with national implications for the LGBT community was being argued at the Ontario Court of Appeal with not just an unrepresented party; he wasn't there on his own trying to represent himself without counsel. He couldn't even go to the hearing. In fact, he relocated back to the U.K.

I had a client in that case that intervened and effectively carried the litigation on that side of the case and, to my pleasure, succeeded in the case. I think it was an important victory that set an important precedent.

That's the kind of litigation that needs funding today. There are people who don't have the means to take these cases forward.

I do have a number of recommendations. I don't know if my time is up or if I still have time.

[The Chair, Liberal, Anthony Housefather]

You have another minute.

[Cynthia Petersen]

I'll go through them quickly and if people have questions, I can expand on them.

First, I'm delighted to hear that the government is committed to reinstating the program. I think it's very important to fund intervenors, not only litigants. That's one recommendation.

I think it's very important to fund consultations and strategic planning, and not just actual litigation. That's my second recommendation.

My third recommendation is that I don't think it should be restricted to equality rights. There are a number of reasons for that, which I can speak to later during the question period if people are interested, but I think it should be expanded beyond equality and minority language rights. I also think this committee should consider recommending that the program fund cases that are not in the federal jurisdiction if they have national implications. There are many such cases that I think would be deserving of funding.

I have two more quick recommendations. It's important when there's a precedent-setting case going forward and multiple intervenors are seeking funding for the same case that there be some process for a fair determination of how funding will be allocated so that it doesn't create divisiveness among allies. That was a problem under the previous program. There were times when numerous parties were trying to intervene in the same case. Some got funding and some didn't. It wasn't really clear. It was sort of those first past the post who got the money, which was a bit arbitrary in my view.

Finally, in terms of whoever makes the decision about which cases will be funded and which will not, I think it's very important for it to be a committee that is diverse and representative of the interests of a variety of communities across Canada, including the indigenous communities, LGBT communities, people with disabilities, and so on.

[The Chair, Liberal, Anthony Housefather]

Thank you so much.

Ms. Landolt.

[Gwendolyn Landolt, National Vice-President, REAL Women of Canada]

Thank you very much, Mr. Chairman. Thank you for inviting me. It's a pleasure to be here.

REAL Women was federally incorporated in 1983. We support the equality of women and human rights of women and their family members.

We have had long experience with the previous CCP and the panel on equality rights. Over the years we have closely followed the operation of the program, and although the concept of the CCP is commendable in theory, in reality, and from our actual experience, we know there are grave reasons why the program should not be reinstated. At the very least, the appalling defects in the previous CCP should be eliminated if it is reinstated.

The practical effect of the CCP was that equality rights were undermined by the program, and it became one of the most corrupt, discriminatory, and biased programs ever developed in Canada.

Although funded by the taxpayer, the program was not accountable to the public, did not report to Parliament, and was not subject to the Access to Information Act. The program, by its biased practices, was an embarrassment in that it, in fact, betrayed human rights and democracy.

The CPP's mandate was to assist the disadvantaged groups in cases that had legal merit and promoted equality. The criteria were not defined in the mandate. This omission became the basis of many of the problems with the CCP, as those expressions were defined according to the ideological biases of those who were managing the program.

The Specific problems with the CCP that we discovered included discrimination in the application of the definition of equality. All women believe in equality, but there are different understandings and interpretations of the meaning of equality. To suggest that all women think alike is to insult the intelligence and the integrity of women. Nobody would dare suggest that all men think alike, and yet the program only funded the feminist organizations. In fact, 140 cases were funded, but many of the cases that were funded were regarded by other women in Canada as both extreme and unreasonable. By only funding the feminist groups, whose views were not the views of all Canadian women, they were not helping women particularly, but were specifically helping the feminist lobby in Canada. They did not represent women, but only an ideology.

It was startling, therefore, when we read the evidence of the proceedings of this committee of March 8. It was stated that “there is no indication that the program was impartial.”

A possible explanation for this discrepancy would appear in the testimony given on March 8 by Mr. Yvan Déry, senior director of policy and research, Department of Canadian Heritage. He said at page 9 that the program was run by a third party and that they didn't go into the level of detail as to how it operated. Then he said that the only information they had of the program was from the reports the CCP had put out annually.

REAL Women has retained copies of the annual reports of the CCP over the years, and we can attest with certainty that none of these annual reports included information as to how the CCP actually operated. The reality is that one had to be directly involved with the CCP to understand how it worked. It is apparent that crucial information was not disclosed to the government officials who signed the contribution agreements with the CCP.

For example, there is questionable interpretation of financially disadvantaged groups and individuals. Many of those funded were not financially disadvantaged, as we listed on page 5 of our brief. For example, very affluent unions were funded by the CCP. Why? They certainly weren't disadvantaged.

There was a lack of transparency with the CCP. For example, on April 27, 2000, a prothonotary, a court official with the Federal Court trial division, declared that the CCP applications and funding contracts were to be be protected by solicitor-client privilege. As a result, the CCP ceased disclosing significant information to the public about its funding practices, and it was no longer made accountable for its actions. The CCP obviously is not a solicitor and the groups who received funding are obviously not clients. The decision by the prothonotary was patently absurd.

There also was an incestuous relationship between the CCP's board of directors, advisory committee, and the equality panel. The members of the CCP's board of directors were all included representatives who received funding from the program. For example, in the year 2006, four of the seven members of the equality panel were members of LEAF, the feminist organization, and the remaining three members of the panel were representatives of a homosexual organization. According to the proceedings of March 8, the largest number of cases that were funded were those of LEAF, and of the homosexual organization Egale. This incestuous relationship among the administrators allowed the CCP to easily direct funding to those organizations that controlled the program.

In the March 8 proceedings, the equality panel was described as consisting of a “panel of experts and leaders in that field which approved the litigation.” Well, they may have been experts in promoting their own organization’s agenda, but they could scarcely be described as impartial or objective experts regarding their funding decisions. Members of the equality panel served as watchdogs for their own organizations in order to channel funding to them. The panel also ensured that any organization with a different ideology was never funded.

In the CCP the whole concept was difficult because instead of providing economic benefits, for example, for disadvantaged people, the CCP in the name of equality became an instrument of social change by judicial fiat. As a substitute for the parliamentary process, the CCP enabled select special interest groups to access the courts by providing funding that financed only those who shared its agenda. Frequently, the same individuals in the program simultaneously had several jobs or capacities within the administration of the CCP.

There cannot be true equality when the court hears only one side of an argument. As a result of its tight control, the program became a national powerhouse directing traffic to and from the courts to change the direction of Canadian society in order to adapt to the views of the special interest groups who administered the program. The court challenges program, in effect, distorted the purpose of the charter as it was not used, as it was intended, for the protection of individuals from the state. But it was, in fact, to change a new social order.

We have many examples of how we and others who did not accept the ideology of the administrators were refused funding, but I'll just quickly give my recommendations.

We recommend, first, that in view of the difficulty in interpreting the word “inequality”, because most of us did not accept much of the equality funding, that the reinstated CCP be limited to issues involving economic inequality and language inequality, and aboriginal inequality, but not the ideological inequality that has occurred in the past.

There must be a financial means assessment of those who seek funding, so that those who are not disadvantaged will not be taking money from the program.

The administrators of the program must be impartial and objective in their assessment of those requiring funding. They should not be affiliated with any special interest group, as this provides a platform to advance their own organization. The program must be transparent, publicly accountable and answerable to Parliament, and it must be subject to the Access to Information Act.

Finally, we would like to recommend that if this reinstated program is to include equality issues, then both sides of the equality issue should be funded by the program so that the court will hear a balanced assessment and both arguments of what equality is, which the courts do not usually hear. That's why many of the changes happened. As said in the March 8 proceedings, one of the worst problems for our group is financial, to go to court, and REAL Women of Canada has never ever been able to break the barricade of the court challenges program because our ideology was quite different. We believe in equality, but have a different assessment of it.

Thank you very much.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

I'll go to West Coast LEAF now. I don't know who's going to be speaking.

Thank you.

[Kasari Govender, Executive Director, West Coast Women's Legal Education and Action Fund]

Thank you for the opportunity to present submissions today. We are both very pleased to be here.

West Coast LEAF's mandate is to achieve equality by changing historic patterns of systemic discrimination against women through B.C.-based litigation, law reform, and public legal education. Although we work closely with our colleagues at the other end of the table, here at LEAF we are separate organizations. We are separately governed, staffed, and incorporated.

West Coast LEAF has considerable expertise in access to justice, which we have detailed in our written submission. For example, two years ago we received funding from Status of Women Canada to conduct a cross-provincial consultation on how best to meet women's legal needs in the province.

This study culminated in the development of a model for women's legal services, which is a storefront clinic in Vancouver delivering a full range of legal services for women, with a primary focus on family law. It's the only model of its kind outside of Ontario, and I'm proud to say that the doors open in May.

We are appearing before the committee today to discuss two specific areas of concern to women in this country, particularly in B.C. First, I'm going to talk about an issue that hasn't been spoken about today, which is legal aid, and in particular, civil legal aid. Then my colleague will spend some time talking about the court challenges program and address some of what has already been raised today.

While the commitment to criminal legal aid funding in this year's federal budget is admirable and necessary, it is civil legal aid that is most woefully underfunded in many provinces, particularly in B.C. For women, it is civil legal aid, particularly for family law matters, that has the most direct impact on the respect and preservation of their rights.

There are a number of reasons for this difference, including that men are far more likely to be charged with a criminal offence than women, and therefore men are more likely to need the criminal legal aid system. Women also, statistically speaking, have lower incomes, particularly following relationship breakdown. They are therefore less able to pay for counsel.

Of course, where family law matters involve heterosexual couples, both the man and woman have to appear, but men are often more likely to be able to afford their own counsel. Women are more likely to rely on legal aid. This is borne out by the numbers of legal aid applicants in family law.

Women are also more profoundly impacted by an inability to access counsel. Women are more likely to be the victims of violence from their male spouses rather than vice versa, and therefore their safety and the safety of their children is more likely at stake during family law proceedings. Further, women are still predominantly the primary caregivers of children and so have more to lose when they are not represented by counsel. In other words, a failure to fund civil legal aid, particularly for family law disputes, has a disproportionate and detrimental impact on women.

Despite this need, B.C. has one of the lowest funding per capita rates for civil legal aid in the country, and Canada as a whole falls far behind other developed nations in ensuring that those who cannot afford counsel can still access the justice system. This fact has not gone unnoticed on the international stage. In 2008, the UN CEDAW committee, the Convention on the Elimination of All Forms of Discrimination against Women, noted in its report on Canada's compliance with that convention that it was deeply concerned that the lack of funding for civil legal aid, in particular in B.C.—they called out B.C.—was denying low-income women access to legal representation and legal services.

According to the World Justice Project, a project that measures and ranks countries around the world on rule of law, Canada is 54th in the world in providing access to counsel on civil matters. Fifty-three nations beat Canada in providing civil legal aid, which doesn't really match many Canadians' picture of what is supposedly a world-class justice system. If we can't access it, it's not much good that it's world class.

In conclusion on the legal aid piece, we highly recommend that the federal government commit to targeted legal aid funding for civil legal aid, including for family and immigration law matters. In fact, this change is required to ensure that men and women have substantially equal access to the justice system.

Such targeted funding would reflect a transparent commitment to an accessible justice system on the part of the federal government and would have a substantial impact on the lives of women and children in the country, as well as on rule of law more generally.

Thank you, and I'll pass it over to my colleague.

[Rajwant Mangat, Director of Litigation, West Coast Women's Legal Education and Action Fund]

Thanks, Kasari.

West Coast LEAF is pleased that this committee is discussing the reintroduction of the court challenges program of Canada as part of your study on access to the justice system. Alongside robust civil and criminal legal aid programs, funding for larger scale court challenges is necessary to support the enforcement and advancement of equality rights on a systemic level.

You've already heard from other presenters in past sessions, and earlier in this session, about the value of the court challenges program and its history, so I'm going to focus on West Coast LEAF's recommendations for what the renewed court challenges program should look like. I'll note that these are elaborated in our written submissions, which should be made available to committee members once they've been translated into both official languages.

First, reinstate the program's mandate to support historically disadvantaged individuals and groups seeking equality in Canada.

Second, expand the program to include provincial and territorial laws, so that it responds to and addresses those laws that most directly and most often impact the majority of individuals, such as family law and access to social services legislation.

Third, provide adequate, sustainable funding for the program, funding that is calibrated to the true cost of mounting systemic test case litigation, including funding for interventions in cases that are already before the court.

Fourth, the program should have a clear mandate and independent oversight.

Finally, funding for this program should not compromise existing funding, particularly funding that already exists for indigenous rights cases, for example.

I think an illustration from West Coast LEAF's past work will highlight how important the court challenges program is to enhancing women's equality. In 2010 West Coast LEAF played a crucial role in the polygamy reference case, in which the B.C. Supreme Court upheld the constitutionality of criminal prohibitions against polygamy. We intervened in the reference to successfully argue that the criminal prohibition of polygamy was constitutional and does enhance women's substantive equality rights. Our involvement in this case was a direct result of the former court challenges program.

In 2004, we received funding from the program to convene a national consultation on women and religious freedom, the outcome of which was the position that we then advanced at the polygamy reference case.

In this case our position was very different from that of other groups with whom we sometimes align ourselves, or with whom we often share perspectives. As you know, that is the nature of many constitutional cases, particularly when it comes to equality rights. The issues are complex and divisive, and courts can't make properly considered decisions without the benefit of views based on thoughtful evidence-based analysis and research, which in turn cannot be done without adequate funding for bringing together legal and social science experts with other witnesses to discuss what equality is and how it should look in particular cases.

As you've heard before, the program was a critical part of the development of equality rights law in Canada in the past, but there is much more work to be done to protect, promote, and enhance those rights going forward.

On that note, as Kasari mentioned, we have secured some funding for a women's legal clinic. My job as director of litigation is going to be to look at the individual cases that come through that clinic, identify systemic issues that may be ripe for challenging in the court, and then analyze whether litigation would be a useful means by which to seek that change. The renewed court challenges program would be indispensable in making that happen.

As my colleague pointed out, our recommendation for equality rights is to focus on sections 15, 28 and subsection 35(4) of the Constitution.

We look forward to your questions.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

We will now turn it over to LEAF.

[Diane O'Reggio, Executive Director, Women's Legal Education and Action Fund]

Good morning. On behalf of the Women's Legal Education and Action Fund, LEAF, we would like to thank the standing committee for this opportunity to discuss the proposed renewal and modernization of the court challenges program. I'm the executive director of LEAF and with me is Dr. Elizabeth Shilton, who is a member of the LEAF board of directors, but also co-chairs LEAF's law program committee.

LEAF is a national non-profit organization founded in April of 1985 to promote women's equality through test case litigation, law reform, and public education. Over the past thee decades LEAF has intervened in over 50 equality rights cases before the Supreme Court of Canada.

Our litigation work has been recognized internationally, and scholars have credited LEAF's work at the Supreme Court level with an important role in establishing a constitutional and legal basis for a comprehensive theory of substantive equality in Canadian law. From 1985 to 2006 the court challenges program made a very significant contribution to that work. LEAF was one of the most frequent recipients of court challenges funding. Louise Arbour, a former Supreme Court justice, has argued that both LEAF and the court challenges program have led the way for the evolution of the charter as a solid instrument of social progress in Canada.

Without the assistance of the funding from the program, it is fair to say that LEAF, among groups, would have been significantly less active in the courts to the detriment of the equality rights of women and girls across Canada.

Let me summarize LEAF's position on two key issues that this committee should consider addressing while looking at the renewal and updating of the court challenges program. Consistent with our mandate, LEAF's focus would be on equality rights.

First, the equality rights program of the court challenges program must be fully reinstated to facilitate compliance with Canada's Constitution and international obligations.

Second, the equality rights program must be properly resourced. The charter guarantees equality rights, and those rights cannot be realized for those disadvantaged groups intended to be the beneficiaries of that guarantee unless they have access to the resources necessary to enforce and protect them.

We also support expanding the criteria to include cases in provincial and territorial jurisdictions, which we address in our written brief.

I will now ask Dr. Shilton to briefly flesh out LEAF's position on these key points.

[Dr. Elizabeth Shilton, Board of Directors Member, Women's Legal Education and Action Fund]

You can tell by looking at my grey hair that I've been involved in this work for some time. I speak as someone who was involved in LEAF's litigation program from its earliest days, during which much of its work benefited from the support of the court challenges program. I returned in 2013 to LEAF as an organization that continued to do high-quality work, but with a much reduced capacity, linked closely to the absence of public support for equality work, including the loss of the court challenges program.

To speak first to the restoration of the program, the creation of the equality rights program coincided with the coming into force of section 15, the core equality rights provision of the charter. LEAF and the court challenges program grew up together. The program underlined the critical importance of equality guarantees to Canadian society and Canadian values. Public litigation funding recognized that individuals and groups intended to benefit from equality guarantees were often the least likely to have the resources to participate in litigation.

The government of the day, concerned to ensure that members of disadvantaged groups would also have a meaningful voice in the evolution of constitutional equality rights, made the responsible decision to provide modest amounts of funding to support their participation in key test cases.

That was then, this is now, and it might reasonably be asked whether equality rights have become so well understood by the courts that there is no more need for test cases. The answer to that question is a resounding no. The job that LEAF and other equality seeking groups set out to do, and the court challenges program set out to support, is far from finished. The Supreme Court's 1989 decision in Andrews, a case in which LEAF was involved, was an important and early breakthrough. The court adopted an approach in which equal protection and equal benefit of the law must take into account the real life situations of disadvantaged groups.

Since Andrews was decided, the Supreme Court's approach to equality rights has been far from consistent. Numerous important test cases came forward between 1985 and 2006. In many of these, LEAF interventions were assisted by funds from the court challenges program. The cases did not stop coming forward in 2006. In Canada, where the constitution is quite properly understood to be a living tree, there will always be test cases exploring its meaning in the context of current social conditions.

Funding for equality rights was crucial when the charter and section 15 were new, and it continues to be badly needed if individuals and groups traditionally excluded from power and from the courts are to have a realistic prospect of effective involvement. Overall, the equality rights program of the court challenges program was a great Canadian success story. Its loss has been a significant barrier to accessing the courts for members of the very groups section 15 was intended to protect.

Turning now to the issue of appropriate funding, the litigation of equality rights demands adequate resources. Litigation never comes cheap, and that's the very reason the court challenges program was instituted in the first place. Basic litigation costs have been climbing since the program's birth in 1985. There is concern throughout legal circles about the extent to which legal costs operate as a significant barrier to access to justice in general. Considerable policy energy is being directed to finding solutions. The cancellation of the court challenges program exacerbated the problem with respect to constitutional litigation, and its reinstatement is an obvious, if partial, solution.

The costs of test case constitutional litigation can be very high, particularly for cases that begin at the trial or tribunal level and are sponsored all the way to the Supreme Court of Canada. This is the ideal type of test case litigation, but over our 30 year history, LEAF has had to learn some hard practical lessons about how to carry out its mandate with scarce resources. Out of necessity, LEAF largely employs an intervention strategy, bringing its expertise in substantive feminist analysis of constitutional questions in cases brought by other parties at higher court levels.

This intervention strategy is considerably less expensive on a per case basis and allows LEAF to respond more nimbly to emerging issues. But good and effective intervention also does not come cheap. One of the consequences of intervention strategy is that it turns fact situations into abstractions. This is a serious problem in equality litigation since it's essential that courts understand how their decisions will affect real people.

To convey these realities to courts, LEAF has increasingly made it a practice to consult widely and to work in coalition with front-line organizations that have valuable experience and perspectives to share on the differential impact of legal analysis on diverse groups of women. This significantly enriches LEAF's ability to assist courts in understanding how the decisions might affect, for example, racialized and disabled women differently than they affect women in positions of relative social and economic privilege. But working this way takes more human and financial resources than traditional forms of legal work.

The old court challenges program deserves great credit for supporting this kind of collaborative litigation practice. The program provided direct funding for litigation, but it also provided crucial funding for case development, and follow-up funding or impact funding to address the results of court decisions. Studies show that the program was cost effective, well designed, and well managed. It unquestionably had a positive impact on equality litigation in Canada.

In discussing legal concepts of equality and constitutional jurisprudence, LEAF is acutely aware of the dangers of making legal concepts sound like abstractions. Let us conclude by emphasizing that LEAF's work has been anything but abstract. LEAF's cases have involved women's equality rights relating to issues of sexual violence, pay inequities, spousal and child support, reproductive choice, religious freedom, and access to justice among others. Much of this work was supported by the court challenges program. These cases name and place in a constitutional context the challenging and often brutal realities of the lives of Canadian women and girls. These realities persist.

In LEAF's view, an updated and properly resourced court challenges program will serve Canada well in the days ahead as our dynamic country and its communities grapple with the equality issues that will inevitably flow from changes in demography, language patterns, family status, and immigration, and evolving gender relations at work, at home, and much else.

We respectfully submit that Canada needs a restored and modernized court challenges program to continue the successful development and flourishing of our citizens' equality rights. The program began as a critical and innovative tool for access to justice in Canada. It can and should be again.

[The Chair, Liberal, Anthony Housefather]

Thank you very much, ladies. I'd like to thank you for the clarity with which you have presented your arguments.

We'll now open the floor to questions, beginning with the Conservatives.

Mr. Nicholson, you have six minutes.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Thank you very much for your testimony here today.

Ms. Petersen, you made some interesting comments with respect to the funding of these different applications and have had a considerable experience in this area. One of the suggestions you made was that a new court challenges program would fund discrimination cases or cases challenging provincial legislation. You've been involved with constitutional cases.

Do you see any challenges or any problems the government might have if it now comes forward and says they will start funding litigation against specifically provincial legislation? Do you think there are some problems with that?