Justice Committee on April 19th, 2016

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[The Chair, Liberal, Anthony Housefather]

No, sorry, we're out of time. Mr. Rankin may be able to ask you a question that allows you to comment, but I need to pass because the time is limited and we have to get through all the questioners.

[Murray Rankin, NDP, Victoria, BC]

Thank you to all the witnesses.

I'd like to start by building on something that Ms. Parsons said, and to acknowledge the work of the African Canadian Legal Clinic. It's really quite excellent.

You talked in your presentation about housing, schooling, and employment as historical discrimination against African Canadians, and I think we would all agree, most of that being provincial in nature, and therefore your first recommendation.

The one that you just talked about I wanted to explore further with you. You talked about the need to make communities aware. You talked about outreach being inadequate in the past in terms of dollars, and money for consultation was the second point. In your presentation you said essentially whatever you do, don't house this within a university context. Is it because of the very things you're talking about, the inability for the community to access it?

[Margaret Parsons]

Absolutely. I think perception is important. There's a perception communities may have where they feel it's not accessible. That may or may not be the case. But I think also in terms of what can sometimes be a bureaucratic structure within universities is very problematic.

It's important that the court challenges program, if it is a stand-alone organization, has the administrative dollars to operate properly. No one is getting rich off this program, and in the past they struggled. Currently it's set at a 25% fee, but they have to have those resources. It has to be within a setting, a climate.... If we want to encourage community and we want to bring in community and we want to involve community, how it's structured and where it's placed is very important, and it being stand-alone is very important.

[Murray Rankin, NDP, Victoria, BC]

I understand.

One of the witnesses we had earlier, the West Coast LEAF, has a new women's legal clinic, and their objective is to do real problems for real people but to use that as the laboratory from which to find cases that call for systemic relief.

I just wanted to ensure that's essentially what the African Canadian Legal Clinic does. You choose cases that might have more systemic importance.

[Margaret Parsons]

Yes, absolutely.

[Murray Rankin, NDP, Victoria, BC]

So you'll be able to generate things that a court challenges program would assess.

[Margaret Parsons]

Absolutely.

[Murray Rankin, NDP, Victoria, BC]

Thank you.

I want to ask Mr. Mia a couple of questions, if I may. First of all, I would like to congratulate you on all of the work you personally did on C-51. We're very grateful to you that we did excellent work on that. I was surprised, therefore, that you didn't spend any time in your presentation talking about the Charkaoui case, and cases like that, so I'll give you an opportunity to talk about the court challenges program in that context.

[Ziyaad Mia]

Thank you for the compliment. A lot of people worked on Bill C-51, there were various community advocates and lawyers who were quite active on it.

In terms of national security issues, let's focus on the Muslim community impact. For whatever reasons, Muslims in Canada are disproportionately affected by the national security file and the war on terror, globally, and in Canada as well. That can sometimes have discriminatory impacts directly.

So you have cases where we've had the security certificate issue where Muslim men were detained without charge, without access to counsel essentially, and with secret hearings because they didn't even have a trial per se. In that case, in the Charkaoui decision, the Supreme Court ruled in that instance.

That I believe was funded by CCP on a section 15 issue—and I still think there's a section 15 issue there—and they lost on that issue but they won on section 7. It's just fundamental justice that in Canada and in our system having essentially a secret hearing is antithetical to our system of justice and the rule of law. The special advocate model was created as a result of that decision.

That's one instance on particular communities, communities that my organization has experience with, or take, for example, the Arar issue. There wasn't legislation per se, but the charter can challenge government action, so what actions the Government of Canada took to lead to Mr. Arar's horrible situation in Syria. Those are the sorts of situations where national security can come up.

There's what I've sort of coined as trickle-down discrimination after national security. You have the front-end national security disproportionate impact on Muslims and those who are thought to be Muslims, and then you have the trickle-down effect.

[Murray Rankin, NDP, Victoria, BC]

But the trickle-down effect may be discrimination and therefore section 15, but your argument, unlike those of many of our other witnesses, is that section 7 should be the basis of the stand-alone ability to access the court challenges program, not in conjunction with the section 15 claim. You're standing by that based on Charkaoui, and Carter, and other cases.

[Ziyaad Mia]

Charkaoui is a classic example because the CCP funded the section 15 argument, but not the section 7 one, and they won on section 7. So who knows if they had funded it what arguments could have been made on 7 in that security certificate context.

Arguably on section 15, religion is there, so if Muslim Canadians thought there was an intersection of religion and national security discrimination that would come up, but it's the socio-economic rights that section 7 is also pregnant with that we would like to....

[Murray Rankin, NDP, Victoria, BC]

Right, and section 7 may be a section for, you, Ms. Levesque. It could give you an opportunity to perhaps expand on the last answer.

That would be a section where socio-economic issues come to the fore. Your colleague, Mr. Rae, I thought helpfully brought to our attention that equality before and under the law is one thing, but equal benefits of the law, he pointed out, is another thing. However, so are socio-economic impact, housing, people who can't access the legal system, and section 7 will likely be the basis for that so I presume that you would agree with Mr. Mia.

[Anne Levesque]

Yes, with a certain maybe nuance.

I think there's a lot of opportunity for section 7 to advance social justice for the most vulnerable. I'm thinking of socio-economic rights, violence against women—I think that it's a violation of women's security whether it occurs in the private or public sphere—and reproductive rights for women.

However, section 7 has also been used to advance the rights of the most privileged to cut health care queues, so I would be very careful in expanding the scope of the program to include section 7. There should be some kind of requirement that it is nuanced and that it must be based out of historic disadvantage or have an equality lens. Section 7 has been used to undermine the rights and social programs that people with disabilities and vulnerable people really need to be fully engaged in Canadian society.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Ms. Khalid.

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

Thank you.

This is a great discussion and I want to thank all of the panellists for coming in and expressing your views.

I'm just being cognizant of the time. I will keep my questions somewhat brief.

I want to start with Mr. Mia and I will ask the rest of the panellists to give their views.

A number of witnesses have come in and have indicated that there is a need to expand the CCP to include cases involving provincial jurisdictions as well. Given that budget 2016 allows for $5 million per year to fund the CCP and thinking that we don't really want to open the floodgates in terms of accessing that dollar amount, in your opinion then do you think that provincial law and action could be limited to only those cases that have a national implication?

[Ziyaad Mia]

Thanks for the question.

It's hard to say, because you could have a case starting in provincial law on government action and it's not funded, but we don't know where that case will go or what implications it will have. Take, for example, an administrative tribunal in Ontario. A charter issue arises, they rule on it, and it goes through some Ontario courts at the lower level. But then a B.C. court picks up on that decision and uses it. Now you have two decisions deciding, and it might set a national standard. You've basically set in stone a principle or a precedent, and there hasn't been an opportunity for that disadvantaged group to inject an interest at that first stage.

I don't know how you'd be able to say that this one or that one will have national implications. On that ground, practically it's hard to know, and on principle, the charter is meant to be a check on government action. It is not meant to be a check on federal government action. It is meant to be a check on all government action. That is why we think it should apply to both federal and provincial law and action.

Knowing that obviously there are political complexities in terms of how you roll it out and all of that, certainly we were happy to work with you in doing that. But I think as a first principle, yes, it should. How do we get to the point where we design a program that does, and where you don't ruffle too many provincial feathers and they're on board? That needs to be thought out for sure, but it doesn't dilute from the principle.

If I may take one second to address Ms. Levesque's point, I fully concur with her. I don't want to be misunderstood. Section 7 should be focused on assisting those who are disadvantaged. Our whole position is on disadvantage.

[Anne Levesque]

I would just add that with regard to the cases with systemic implications, the program as it's currently structured has panels who are appointed by members of the community. They have legitimacy in the grassroots community as people who are able to select cases that have that systemic implication. The program has the capacity to do that. It's been doing it since it was founded. The structure does that.

Venturing into the provincial realm, the program as it is has the expertise to decipher which cases ought to be funded based on national importance. The CCD does it in its own interventions. We only intervene in cases that we feel, given our limited resources, will have a national impact. The court challenges program has made that assessment with its scarce resources, and has the capacity to do that. Expanding to the provincial sphere will not be a problem.

[John Rae]

As an additional parameter, the focus should be selecting cases that seek to expand equality, which I think is what was done in the past. That should be a parameter of selection.

[Margaret Parsons]

The ACLC's position on section 7 is that it should not be stand-alone—sorry, Mr. Mia—because of the floodgates issue. While we support provincial jurisdiction, we support section 7 if it's linked to section 15, in terms of the provincial jurisdiction as well, and if it has national implications, not just within the provincial context.

However, if the recommendation is to have section 7 as a stand-alone or provincial jurisdiction, even if the impact is just within a particular province, you cannot do that within the current funding model or dollars. You have to give it the funds it requires, the resources it requires, to really make that effective.

I think what we have to recognize, in trying to stay within the original intent and mandate of the court challenges program, is what it was meant to achieve around systemic issues, around trying to make systemic change and systemic impact in the area of equality rights, both equality and language rights, opening it up to understanding the floodgates piece, and giving it the resources to be able to do that.

[The Chair, Liberal, Anthony Housefather]

Thank you.

Do you have one small question?

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

In terms of assessing which cases would be granted funding, can all of you just briefly let us know what you think of a panel or deciding committee on how funding should be provided in terms of making it fair and equitable for all?

[The Chair, Liberal, Anthony Housefather]

There is thirty seconds each for an answer.

[Ziyaad Mia]

I'll cede my time to my colleagues.

[Margaret Parsons]

It is important to note the experts that are on those panels and the credibility they have. They have done a superb job in picking cases that have a wide, national, and systemic impact. The way the program is structured and the organizations that are involved, it is a culture of consensus. It's a culture of learning. It's a culture of respect.

I have never seen where we have battled for resources. It's very much a learning environment. Being involved in the court challenge program, I have grown and learned so much about other equality rights issues.

I really concede to the panels, both on the language and equality rights side. They are very knowledgeable. They know what they're doing. They know the issues. They work very hard and they have done a superb job.