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.