Justice Committee on April 14th, 2016

[Cynthia Petersen]

My suggestion, to be clear, is that it fund those cases that have national implications.

I can give you an example of one that was not funded but which I was involved in, the M. v. H. case, which was argued all the way to the Supreme Court of Canada. It was an Ontario case challenging provisions in family law legislation in Ontario that discriminated against same-sex couples and that denied same-sex couples access to spousal support upon a breakdown of their relationship. Once that case was decided by the Supreme Court of Canada, laws in every province and territory were changed across the country. There was omnibus legislation in most jurisdictions to radically transform laws. It was a case that unquestionably had national implications.

When it started, the court challenges program was still in existence, but nobody made an application, to my knowledge, and would not have received funding, I presume, because the funding wasn't there.

[Rob Nicholson, Conservative, Niagara Falls, ON]

That's strictly provincial legislation.

[Cynthia Petersen]

Now, that's a historical example, and we've already heard from West Coast LEAF about some important initiatives in B.C. that could receive funding if the program were reinstated with the expanded mandate and that I think would also have national applications that would benefit people across the country.

Might there be some political criticism of the federal government? Yes, I acknowledge that; I'm not naive. But I think it's not terribly dissimilar from the way the Supreme Court of Canada decides when it will hear cases. It will hear cases out of provincial jurisdictions when there are national implications to the case. It will grant leave to hear those appeals. I think appropriate criteria would have to be in place to decide which cases would be funded. It would not be the only criteria, surely, but one of them would be whether a case has national implications.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Fair enough.

I'll tie in one of the comments you made with something that Dr. Shilton said. There are, as we all know, increasing costs with respect to all aspects of litigation and court applications, but you pointed out something that most solicitors would know, which is that much of the cost is not just to pay lawyers' fees. There are the disbursements and, interestingly enough, as you would know, those disbursements—you mentioned some of them, such as the high cost of photocopying at courthouses and courts—are actually costs that are basically controlled by the provinces in their administration of justice.

Dr. Shilton, you said that there are examinations of solutions to reducing the costs. Do you know of any efforts, any lobbying, or any representations that are made to our provincial colleagues to reduce the costs of court applications by reducing the cost of the disbursements, which, as Ms. Petersen pointed out, are the greatest costs in bringing forward these cases?

[Dr. Elizabeth Shilton]

My reference was not specifically to.... I referred to a policy concern about access to justice and a lot of work that's being done on that. A lot of that work isn't focused on court fees and those kinds of disbursements, but there are significant disbursements that are unrelated to the provincial administration of justice policy. We have significant disbursements, for example, in connection with expert witness fees in cases that we sponsor from the ground up. Also, as Ms. Petersen referred to, a lot of our disbursements relate to consultations and coalition work. Those kinds of things include travel costs and meeting costs, which are also not controlled by the province.

I'd like to say just one thing on this question of the distinction between federal and provincial issues; that is, as equality rights litigation has evolved, often it's not as simple as attacking legislation. Drawing the line between cases that are within federal jurisdiction and within provincial jurisdiction is no longer as simple as we thought it might be back in 1985 when we saw these cases as “government versus the citizen”.

[Rob Nicholson, Conservative, Niagara Falls, ON]

I suppose family law is a good example. With the Divorce Act being under federal jurisdiction and many other elements under provincial jurisdiction, we see the two of them.

Ms. Petersen—and I apologize, I wish I had those translated copies of all your presentations here today—I think you said that you were involved with 50 cases?

[Cynthia Petersen]

No, I think that was someone else speaking on behalf of LEAF.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Oh, yes.

Of those 50 cases, do you know how many received funding from CCP?

[Dr. Elizabeth Shilton]

We planned to break that down in our brief. We'll be providing a list of the LEAF cases that were funded by the court challenges program, with a brief description of what those cases involved.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Thank you, I look forward to that.

Ms. Landolt, thank you very much for your testimony as well. You said that those groups or individuals that had a different philosophy were never funded. I think is what you said. How many times did your organization make applications?

[Gwendolyn Landolt]

We applied four times, I believe, and we were refused. We were involved in over 30 cases, most before the Supreme Court of Canada, but we had to pay every penny ourselves. We faced great discrimination from the committee because we didn't go along with a lot of the LEAF or feminist philosophy.

[Rob Nicholson, Conservative, Niagara Falls, ON]

What's the basis of your saying that? Did they indicate that to you?

[Gwendolyn Landolt]

Oh, yes. If you read our brief, for example, in the case of Tremblay and Daigle that started in 1989, the court challenges program said that they could not fund us because there were no federal issue involved. Well, you can imagine our shock and dismay when the CCP funded LEAF in a case where they said there was no official.... We have the actual documentation showing that.

[Rob Nicholson, Conservative, Niagara Falls, ON]

You have the document saying that they wouldn't fund it because there were no federal implications in that?

[Gwendolyn Landolt]

Exactly, and we have the document saying that. We were shocked to find, in the annual report of CCP that year, that they funded LEAF, even though they said there were no federal implications.

[Rob Nicholson, Conservative, Niagara Falls, ON]

We're getting all kinds of documents. If you have that document, maybe you'd like to file that with us as well.

[Gwendolyn Landolt]

Yes. Well, I put that in our brief, and I gave the date of the letter and the correspondence.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Okay.

[The Chair, Liberal, Anthony Housefather]

I think he means the actual letter received from the program refusing the funding. I know you put the fact in the brief, but I think Mr. Nicholson is asking about the letter.

[Gwendolyn Landolt]

You want the actual letter. We may have it in our office, but it will take time to get it. The National Archives has all our documentation. We gave all our documentation on the court challenges program to the National Archives. We can retrieve it, and we will get the letter. I gave you the date in our brief.

That was one example of utmost discrimination. Another example is one of our members. A brother and sister lived together, and the brother funded his elderly sister and looked after her. He said if M. and H., a same sex couple, could get funding and family benefits, why couldn't a brother and sister? He was looking after her. He was simply refused funding by the CCP. In other words, if you didn't fit the ideology, legal merit had no resonance with them at all.

We've tried and tried to say equality is different in different eyes. I can give you one of the earliest cases, Blainey versus the Ontario Hockey Association in 1986. It was the first really major equality issue. In that case a young girl wanted to play hockey in a boys' hockey team. She went to the Ontario Court of Appeal and the court said yes, she should be able to play hockey in a boys' hockey team. Well, I think she lasted maybe half a season because she was banged into the boards, and she found it discomforting. REAL Women's view was of course we should have equality in hockey, but having a girls' team and a boys' team was the rational thing to do. Because of this interpretation and the funding from CCP—and LEAF was involved in that case in 1986—we got this unusual idea that women should be able to play in mens' hockey teams. That's why we have separate Olympic hockey teams, male and female. That shows a different interpretation of equality. Those who don't fit the ideology of the administrators of the program are simply left out in the cold, and, as I say, we've had to fund over 30 cases ourselves because we didn't fit the ideology.

[The Chair, Liberal, Anthony Housefather]

We're almost at 12 minutes. It was a long answer.

Ms. Khalid.

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

Thank you, ladies, for coming in and making these presentations. They were very informative.

To begin, I'm hoping, Ms. Petersen, that you'll be able to expand on one of your recommendations. You stated that the CCP should be expanded to include more rights, not just equality and language rights. Can you please let us know which rights you're referring to?

[Cynthia Petersen]

I do want to say that I think it's very important to have properly resourced equality rights funding reinstated as well, so it's not to diminish that in any way. But in my experience, many of the key cases the court has been hearing and will continue to hear either have an intersection with other rights—so there's an equality dimension to the case, or there are other fundamental rights at issue—or the strength of their legal merit is not necessarily under section 15. But it doesn't mean that they don't benefit vulnerable and disadvantaged groups.

I'll give you a couple of examples of recent cases that have been argued in the Supreme Court of Canada. The Bedford case a couple of years ago involved challenges to Criminal Code provisions that criminalized aspects of sex work. There are definite equality components to that case, and there was a section 15 argument—a small one, not very robust—argued in the case. It was primarily a section 7 case—life, liberty, and security of the person.

Most recently—it's been in the news again—was the Carter case on physician-assisted dying. There are important equality aspects to that case, but it's also fundamentally a section 7 case. So I think section 7, for sure.

Section 2 rights, when you think about freedom of religion, freedom of association, freedom of peaceful assembly.... I'm missing one.

[Dr. Elizabeth Shilton]

Freedom of expression.

[Cynthia Petersen]

Yes, freedom of expression, thank you.

Section 2 rights are really important, and I can see many ways in which equality issues would intersect with section 2 rights, and any indigenous rights. I was here this morning when the earlier presentations were being made by some of the indigenous leaders, who also think mentioned treaty rights and the importance of perhaps not restricting this to the charter, although I think it's important to have a robust charter and access to justice to enforce charter rights.

Mobility rights might also be of tremendous importance, section 6. Also, with respect to—sorry, I made a note this morning because I was anticipating the question, and I know I'm going to overlook something if I don't refer to my notes—cruel and unusual treatment and punishment, section 12, there might well be cases that are extremely important that would benefit from funding.

I don't mean to leave any out. I know that there are other rights, obviously, in the charter as well, but I think due consideration needs to be given to all of those.

This morning Mr. Rankin was talking about siloing so that there would be funding for equality cases perhaps, and then funding perhaps for indigenous cases or for section 7. I'm a bit concerned about that, because cases don't often unfold in that way. The intersection between them is common, and I think it would be difficult to administer if it were completely siloed.