Justice Committee on April 19th, 2016

[Gerald Chipeur]

Only when there's an absence of merit and a court would take the position that it is a frivolous and vexatious case. That's the test that a court would usually apply to throw out a case. If an argument cannot meet that minimum standard, then it should be set aside. Otherwise, the Carter case tells us that if you were to apply that test to many of the cases that have been successful in the Supreme Court of Canada, they would not have received funding. The Supreme Court, in the Carter case, not only thought that it was a meritorious argument but gave it millions of dollars in funding for the litigation.

I'm saying it is a dark hole to go down that has no bottom. In other words, once you get into that area you are into the laws of men and women and not the rule of law. It is important for this committee to very clearly give direction to the decision-maker, so that the decision-maker is not making a decision based on what they think but rather on whether this case should ever go before a judge, because it's the judge's decision that really matters in these cases.

[Colin Fraser, Liberal, West Nova, NS]

Obviously some person has to make this decision based on their judgment with regard to the merit of the case reaching at least the threshold of not being vexatious and frivolous.

[Gerald Chipeur]

That's my recommendation, yes. Thank you.

[Colin Fraser, Liberal, West Nova, NS]

All right. Thank you.

To the Canadian Bar Association, Mr. Chipeur had mentioned the fact that the program is biased in the way that it had been previously instituted, and that applications would come before the person making the decision, and they would impose their own bias on whether or not that matter would proceed. I know that last week we heard from another group that said a similar thing regarding their applications that went before it.

Could you please comment on what you think of the allegation or the suggestion that the program was biased as instituted, and please help us understand what your position would be on that?

[Sarah Lugtig]

Our position would be based on what our members have told us. We have 36,000 members across the country, jurists across the country, with a broad range of expertise who have worked with the program, both in terms of the language rights and the equality rights aspects of the program. I have to say this was not an issue that was raised in our deliberations regarding the court challenges program. It may be there are individual cases where individual organizations or groups are not happy with the results, but we haven't heard anything indicating there is a systemic problem in that regard.

I don't know if my colleague has anything to add to that.

[Mark Power, Special Advisor, Forum of French Speaking Common Law members, Canadian Bar Association]

Mr. Fraser, I am going to address the Language Rights Support Program.

The language rights component was re-established by the Conservative government in 2009 and has worked very well. It's been evaluated internally by the Government of Canada during the previous government, and the conclusion was that it worked very well with no bias. I respect Mr. Chipeur's position, but I don't think it's a tenable or a serious concern that should prevent this government from acting quickly to re-establish the equality side of the program.

[Colin Fraser, Liberal, West Nova, NS]

Would you agree with me that one of the main purposes of the court challenges program is access to justice, but also to give voice to those who may not have the ability to bring a challenge forward, in order to expand rights, and to breathe life into the charter itself?

[Mark Power]

Of course, that's a basic Canadian value, the CBA would say, and the previous court challenges program did wonders in helping that progress. The current language rights support program is doing the same, whether it be federal or provincial.

On that point, Mr. Nicholson I think is concerned about something that is not a problem. The fact is, the previous government's court challenges program on the language side has been funding challenges to provincial education legislation. It has been doing that since 2009, and it has been doing it well. The results are tangible on the ground for language communities, be they Quebec anglophones or francophones outside of Quebec. I think it's working very well, Mr. Fraser. The issue from the CBA's perspective is, let's get it back and let's get it set up again quickly, please.

[Colin Fraser, Liberal, West Nova, NS]

One of the suggestions we hear sometimes when talking about access to justice, and the fact the court challenges program spends a lot of money on this, is that lawyers should take things on pro bono and do this work. Do you feel that work would get done if the court challenges program wasn't there?

[Sarah Lugtig]

What we would say in response is that with the court challenges program, in its former incarnation on the equality rights side and today with the language rights program, lawyers already contribute a significant amount of pro bono and what we call “low bono”, which is when you receive lower fees than you normally would be able to and need to subsidize those from other work. That has always been a significant component of the program. We say that should continue to be the case, but at the same time the cases are very expensive, increasingly so, especially complex ones. There needs to be a sustainable financial and other support there, along with whatever pro bono support is provided to ensure that, as you say, the program can breathe life into the rights in the charter.

[Colin Fraser, Liberal, West Nova, NS]

You had mentioned the court challenges program is as important or maybe more important than ever before with regard to access to justice, I presume you were thinking.

[Sarah Lugtig]

Yes.

[Colin Fraser, Liberal, West Nova, NS]

Can you talk a bit about the cost of litigation, about bringing something before the Supreme Court of Canada, and how those costs have risen over the years?

[Sarah Lugtig]

Yes, what we did in our consultations with members who are involved in these kinds of cases is establish that costs have raised exponentially, and certainly my colleague may wish to comment in terms of language rights cases. Things like expert witnesses are increasingly required. The evidence required to establish a prima facie, or first violation of equality rights, is significant. There's complex policy legislation involved today in these cases. What we heard was that they always cost more than you think they will. We're always subsidizing them, sometimes out of pocket, for disbursements as well as through pro bono hours, and we expect that this will continue. Our members recognize the full costs of litigation will not be supported by the program, and because of the importance of access to justice and our commitment to that important fundamental democratic value, we still would like to see it reinstated.

[Colin Fraser, Liberal, West Nova, NS]

Can I ask one more quick question?

[The Chair, Liberal, Anthony Housefather]

A very short question.

[Colin Fraser, Liberal, West Nova, NS]

To Ms. Zwibel, with regard to private member's bills being subject to scrutiny, charter compliance, and this declaration of compatibility from the government, at what stage would that happen if the bill were before Parliament?

[Cara Zwibel]

That's the tricky bit that we're still working out. We appreciate that there might be a waste of resources if we do that for every private member's bill that gets introduced, so I think it would have to pass a certain phase. I have to admit that in terms of looking at the flow chart of where that occurs, that's something we're still working out. It wouldn't necessarily be every private member's bill that gets introduced. There would need to be a threshold to anticipate that we're getting close to passage.

[Colin Fraser, Liberal, West Nova, NS]

Thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you very much, Mr. Fraser.

Mr. Rankin, you have the floor.

[Murray Rankin, NDP, Victoria, BC]

I want to thank all the witnesses for their thoughtful presentations. I have questions to all of you, if I may, in the short amount of time available.

First of all to you, Ms. Lugtig, a structural question. You mentioned, for example, in your fifth suggestion on expanding the mandate, that we consider funding for test cases raising aboriginal treaty indigenous rights and you suggested it may be important to house it in a separate arm of the program. We've heard on the minority languages issue a similar suggestion that we create essentially a separate arm of the program to deal with those rights. Is it a concern to you that it could get unwieldy if we have various arms, and what about leaving it as it was before 2012 with an aboriginal test case funding program housed in a different department?

[Sarah Lugtig]

We have had discussion of this question because we're aware of these discussions. As far as the Canadian Bar Association is concerned, in some ways these will be administrative details that need to be worked out because of the granular nature of some of the considerations that need to be taken into account. Most critical to us is that there be separate envelopes of funding: equality rights funding, language rights funding, and if possible, funding for the types of cases that you've just described.

In terms of the structure, I think we would leave it to the government to best determine what would make the most sense from an administrative perspective, taking into account these positions from the communities that would be served.

A key change with respect to the aboriginal cases, though, is first of all that it be administered independently from government, because it was part of the Indian and Northern Affairs department. What we have heard from our aboriginal law members, those who practise in that area, is that the independence, which is so important for the other aspects of the program, would be critical, and that it must have available to it some of the other supports and expertise that was available to the other funding pieces.

[Murray Rankin, NDP, Victoria, BC]

Mr. Chipeur, I appreciated your thoughtful presentation as well. I have a couple of questions on the issue of bias, which is a great concern you've put your finger on. One of the questions that I don't think you directly answered Mr. Nicholson on was whether or not somehow a person has to make the initial cut, if you will, independent of government, i.e., appointed by Parliament or within, perhaps, the Department of Justice. Under Mr. Nicholson I think there was a program created, the special advocates program, doing sensitive national security immigration work, and that was housed, in a sense, within Justice, but with a lot of safeguards for its independence.

Do you see that being a potential model, or do you think this person ought to be appointed by Parliament in order to ensure some separation from the government of the day?

[Gerald Chipeur]

Coming from the standpoint that I, first of all, do not think the program is advisable, if we take that off the table, it's hard to then answer the question of which one is better—

[Murray Rankin, NDP, Victoria, BC]

Fair enough.