Justice Committee on April 19th, 2016

[The Chair, Liberal, Anthony Housefather]

I would like to welcome everyone to this meeting of the Standing Committee on Justice and Human Rights.

We have a distinguished panel of witnesses to hear from this morning. I would like to introduce, from the Canadian Bar Association, Sarah Lugtig, who is the chair of the access to justice committee, and Mark Power, who is the special adviser to the former French-speaking common law members. I know they're accompanied by Tamra Thomson, who's the director of legislation and law reform, even though she's not at the table. Welcome to all of you.

We have Gerald Chipeur, who is a partner at Miller Thomson LLP. We have the Canadian Civil Liberties Association, which is represented by Cara Zwibel, who is the director of fundamental freedoms program.

Welcome, all of you. We will start with the Canadian Bar Association.

[Sarah Lugtig, Chair, Access to Justice Committee, Canadian Bar Association]

Good morning.

Mr. Chair, ladies and gentlemen members of the committee, the Canadian Bar Association appreciates this opportunity to comment on the Court Challenges Program, which is closely related to our mission.

The Canadian Bar Association is a national association representing 36,000 jurists across Canada. Among the association's primary objectives are to improve the law and the administration of justice. It is in that context that we wrote to you. The committee has in its possession the letter we sent it about the program.

The court challenges program is as important today as it was when it started, if not more important. By giving vulnerable individuals and groups the tools they need to exercise their basic rights, the program makes these rights real and not just words on a paper.

In renewing the program, it's critical the government reinstate the elements that best support this aim. In our view there are four.

The first is administration of the program by an organization that's independent from government.

The second is to continue, at its core, support for historically disadvantaged groups and official language minorities to enforce their equality and language rights under the Constitution through the courts.

The third important element of a reinstated program is to only fund those cases that have a systemic impact and that promise to improve conditions more broadly for the individuals and groups these rights are intended to protect.

Finally, it's extremely important the program continue to provide for meaningful and informed input into the development of the cases by the communities that will be most affected. This is done through support for consultation, as well as support for access to the program, and spreading information about the program and the rights it protects.

We've provided further detail on these important elements of a reinstated program, and we would invite you to review our submission.

With that said, the other major point we wanted to make today in the time we have respects this question of expanding the mandate of the program. We understand that is under consideration. We considered this question in light of the commitment by the government to reinstate the program in terms of equality and language rights, and to modernize it. It was in the spirit of understanding the framework that we considered what might be potential expansions to the mandate that would support that underlying rationale.

Our first recommendation, and the CBA has long made this recommendation, would be to extend equality rights funding to support cases that challenge provincial or territorial law or policy. These cases can be important precedents in their own right, with broad impact, and that has long been a limit that many have critiqued the program for.

Secondly, we advocate expanding the mandate to include complaints under the Official Languages Act, and it's for similar reasons we recommend that.

We also recommend, and this is our third potential addition to the mandate, that the program be flexible enough to support the entirety of a case that may raise or be based on other charter rights in intersection with equality rights. This is increasingly becoming common. A recent example is the Carter case, where not only section 15 but other charter rights were raised. I think it's evidence of the complexity of the issues that can raise equality issues in Canada today.

A fourth potential addition to the mandate would be to support systemic complaints against government under the Canadian Human Rights Act. This would be complaints before the Canadian Human Rights Commission. We have recently seen a case, the first nations child caring society complaint, that was an equality test case. They need support at the early stages. We would advocate that you consider extending the program to provide that support.

Finally, with respect to mandate expansion, we would urge this committee to strongly consider recommending that funding be provided to support test cases raising aboriginal rights, treaty rights, and the responsibilities of the federal government to indigenous peoples. We recognize that this would likely entail additional funding, an additional budgetary commitment to what is currently being committed, and that it would need to start with consultation with indigenous communities. However, we think this is an important addition that needs to be made.

That's all we will say on the issue of mandate expansion. Again, we would invite you to read our brief.

In closing, we would say that the objectives of the program are as important today as they were in 2006 and in 1986. Canadians still need the court challenges program to make equality rights and language rights real for the people those rights are intended to protect.

We really appreciate this opportunity to share the best advice that our members have for this committee and wish you the best in the important work that you have to do.

Thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you very much, Ms. Lugtig.

We appreciated your presentation a great deal.

We're going to go on to Mr. Chipeur.

Welcome.

[Gerald Chipeur, Partner, Miller Thomson LLP, As an Individual]

Thank you very much for the opportunity to discuss with you my experience and my recommendations regarding federal government funding for charter litigation challenging federal law, and based upon what my colleague has just said, maybe more than just federal law.

There are three reasons for my opinion that such a funding program would be ill advised. First is the issue of bias. The application process and the decision-makers under the original court challenges program were biased.

I had personal experience with the program, and for reasons of solicitor-client privilege I cannot go into the details. However, I can just tell you what I saw as I made application for funding on several occasions.

The bureaucrats took the position with respect to my arguments that the arguments were not going to be funded because, in their view, they did not have a reasonable chance of success. When I asked them, “How did you form that opinion?”, they said, “We contacted a law school dean or a law school professor, and it was their opinion that they didn't like your argument.” On the basis of a prejudgement of the arguments that I was going to present, the funding was never provided to any of my clients as we participated in the charter challenges program in the first iteration of that particular process.

In my view, the test should not be reasonable chance of success and law professors should not be the gatekeepers. If reasonable chance of success were the test, then Carter would never have been funded if it had come to the court challenges program for funding, because, of course, Carter was challenging a direct precedent against the position that Joe Arvay was arguing, and that was the Rodriguez case.

In my opinion, the previous court challenges program was almost unconstitutional because it was administered in a manner that was not consistent with the rule of law. Money was distributed on the basis of the opinions of individuals and not principles of law equally applied to all applicants for funding.

I have a second reason to oppose going into another court challenges program funded by Parliament, and that is Parliament's responsibility to get the law right in the first place. Public resources should be expended in Parliament and not the courts to ensure that all laws are charter compliant.

It may have been desirable 30 years ago to test old laws, but after three decades that argument no longer seems reasonable. Today, the work of the Attorney General, cabinet, the House of Commons and Senate committees, and three readings in each House, should give adequate opportunity to scrutinize the law and ensure that it is charter compliant. Funding for a charter lawsuit after this process is in a sense hypocritical and wasteful. It would be more prudent to measure twice before cutting once.

Furthermore, to fund charter lawsuits is to imply that Parliament is somehow subservient to the courts. Parliament should not assume that its opinions are any less important or valid than those of the court on the subject of charter compliance. Parliament would show a lack of confidence in its own judgment if it were to fund lawyers to challenge the hard work of parliamentary committees just like this committee here today.

Finally, the challenges program is redundant. In those rare occasions when a charter challenge is justified and is important to the public, the Supreme Court of Canada has shown the willingness to order public funding. That is what the Supreme Court of Canada said in Carter about cases that should receive public funding. I won't take the time to read the quote for you, but if you were to go to the Supreme Court of Canada decision 2015, at paragraph 140, you find the test that the Supreme Court has set for funding public interest litigation like Carter.

In light of this new practice in the Supreme Court of Canada, a renewed court challenges program is redundant. If Parliament nevertheless determines that it is in the public interest to fund charter litigation, I recommend that the law prohibit bias and require compliance with the rule of law. This means that a new program should include the following 10 rules, at the very least.

One, the opinions of bureaucrats, politicians, academics, former judges, and others should not be a factor in allocating funding. Two, the only rules that should be applied are those that are based on law. Three, no funding should be provided to re-litigate a question decided by the Supreme Court of Canada since adoption of the charter. Four, no funding should be provided where a litigant does not have facts that disclose a cause of action. Five, no funding should be provided where litigation is frivolous and vexatious. Six, no funding should be provided for a colourable or fraudulent purpose. Seven, no funding should be provided to another level of government. Eight, no funding should be provided to a non-resident or non-refugee of Canada. Nine, no funding should be available where the litigation is duplicative of litigation that is already before the courts. Finally, 10, funding should be provided equally on a first-to-apply basis to all otherwise qualified litigation proposals.

Thank you very much for your time this morning.

[The Chair, Liberal, Anthony Housefather]

Thank you very much. We really appreciate that.

Finally, we're going to go to the Canadian Civil Liberties Association, with Ms. Zwibel.

[Cara Zwibel, Director, Fundamental Freedoms Program, Canadian Civil Liberties Association]

Thank you.

Mr. Chair and members of the committee, on behalf of the Canadian Civil Liberties Association I want to thank the committee for this invitation to participate in your study on access to the justice system.

The CCLA fights for the civil liberties, human rights, and democratic freedoms of all people across Canada. Founded in 1964, we are an independent, national, non-governmental organization working in the courts, before legislative committees, in the classrooms, and in the streets protecting the rights and freedoms cherished by Canadians and entrenched in our Constitution. CCLA's major objectives include the promotion and legal protection of freedom and personal dignity, and for the past 51 years we have worked to advance these goals.

CCLA has a deep and long-standing commitment to access to justice and views this issue as a major priority that, frankly, Canada has failed to sufficiently address. We appreciate that this study is examining a number of issues, including the newly reinstated court challenges program, access to legal aid, delays in the administration of justice, and section 4.1 of the Department of Justice Act. All of these issues are worthy of study, and we will be submitting a written brief to the committee outlining our position on each of these issues in the coming weeks.

Today, however, I intend to focus my comments on section 4.1 of the Department of Justice Act, and more specifically, I would like to address the committee on steps that can and, in our view, must be taken to address critical accountability and transparency gaps in our law-making process.

As you all know, section 4.1 of the Department of Justice Act requires the Minister of Justice to examine every bill introduced in or presented to the House of Commons by the government and report to the House if any of the provisions of the bill are inconsistent with the Canadian Charter of Rights and Freedoms.

You will also probably be aware that currently this provision is interpreted in a way that does not require a report to Parliament unless the minister is of the view that there is no credible argument that can be made for the consistency of the legislation with the rights guarantees. As a result of this standard, not a single report to Parliament has ever been made, yet, as we all know, many government laws have been struck down by our courts or are the subject of fierce constitutional concerns by legal experts.

In our view the current approach and standard are woefully inadequate.

CCLA has been concerned for some time about the interpretation and effect of section 4.1. We were the only intervenor in the federal court case brought by former Department of Justice lawyer Edgar Schmidt, who challenged the current interpretation of the section. The Schmidt case highlighted some of the weaknesses in our legislative process.

Our current system, in our view, does not ensure that you, as members of Parliament, those elected by the people and charged with passing our laws, are in a position to fully appreciate your constitutional obligations or how legislation may impact protected rights.

CCLA's work on this issue has extended well beyond the intervention in the Schmidt case. In late 2015, CCLA launched our #CharterFirst campaign, and since that time we've been engaged in consultations with some of Canada's leading constitutional law scholars and political scientists to consider how our legislative process can be improved. The goal of these consultations and of the project more broadly is to ensure systematic, meaningful, and transparent consideration of a proposed law's constitutional vulnerabilities. In other words, we want there to be a real and substantive discussion of which rights may be affected by a proposed law and whether any infringement or violation of rights is reasonably justified.

Nearly a thousand Canadians have already joined our campaign, so there's clearly an appetite for change among the Canadian public.

I'm going to talk about identifying the problem and developing solutions. In terms of the problem, the simple fact is that the current approach under section 4.1 of the Department of Justice Act is not working. In our view, every elected representative has an obligation to respect and uphold the Constitution; however, we appreciate that members of Parliament will not always have the information they might need to assess the impact of legislation on constitutional rights. While the government benefits from a large team of legal advisers in the Department of Justice, the legal resources that members can access are often quite limited.

The current interpretation of section 4.1 may actually have a perverse effect. When no report is made by the Minister of Justice, the government may take the position that there are effectively no constitutional concerns for Parliament to worry about. This is not only misleading, it impoverishes the level of debate and discussion on a bill.

I can't articulate the problem any better than has been done by Professor Janet Hiebert, a political scientist who's written extensively on this subject. She says:

In Canada, the practice of non-reporting to the House of Commons that Bills are inconsistent with the Charter occurs because the Minister of Justice has concluded that a credible Charter argument can be made in support of the claim that the Bill is reasonable. But this denies Parliament the information or assumptions that led to this conclusion. The absence of any explanation also denies Parliament relevant information for assessing whether or not the government has been overly risk-averse or cautious in its legislative decisions. Parliament should not be placed in the untenable position of having to either pass legislation that may have a high degree of risk of subsequently being declared invalid or, alternatively, having insufficient information to assess decisions that avoid ambitious objectives or comprehensive means because of governmental and bureaucratic attempts to manage or avoid Charter risks.

The consequences that flow from the current approach are not confined to what happens in Parliament. After a law is passed, avoidable constitutional challenges often follow and these challenges cost taxpayers dearly. They consume precious judicial resources which could be better spent on other things. Laws that are passed, even though they may violate constitutional rights, can have a direct and very negative effect on people's lives.

To take but one example, the last government passed legislation that changed the timing of parole eligibility for certain offenders and made that change retroactive. Every court that considered this law, including the Supreme Court of Canada, found it to be unconstitutional. While that case made its way through the courts, the applicants in the case, and many others no doubt, spent additional time in jail, in one case an additional close to two years. If we can prevent an unreasonable and unconstitutional loss of liberty by improving our legislative process, it is in our view incumbent on us to do so.

In terms of our solutions, as part of our #CharterFirst campaign, CCLA will be delivering detailed policy proposals on how we believe this issue can best be addressed. Our proposals will aim to enhance the roles of both the legislative and executive branches of government to better ensure that the laws we pass comply with constitutional obligations.

To be clear, the goal is not to ensure that there are no more constitutional challenges or even to reach a consensus on what the Constitution requires. Rather, we want to enrich the debate, make the government's rationale in proposing laws more transparent, and provide members of Parliament with the tools to hold government accountable and make informed decisions about legislation. Our proposals are being developed as we speak, but are based on our consultations with the experts that I mentioned earlier.

We understand the Minister of Justice has recently announced an intention to table in Parliament the government's charter justification underlying Bill C-14, the assisted dying bill. We are anxious to see what this statement looks like and hope that it will allow for enhanced debate and discussion on this important and contentious bill.

The minister's decision to do this is a good step forward, but in our view these kinds of discussions can't be contingent on a decision by the minister introducing a bill. We need systematic and proactive measures in place, codified in legislation, to ensure that every bill that's ultimately passed by Parliament, including private members' bills and bills originating in the Senate, has received the time and space for truly informed debate on constitutional vulnerabilities.

We look forward to working with the committee on this issue going forward and certainly welcome any input that you may have on this important project.

Thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you very much. I appreciate, again, all the witnesses and their testimony.

I want to give you a brief overview. While it is correct that we are looking at all of these issues, we are actually preparing a first report on the court challenges program. We will definitely take your views on section 4.1 into consideration when we reach the discussion on section 4.1.

I'd also invite you, in your written submissions, to comment on the court challenges program because that is our first, most immediate study.

[Cara Zwibel]

We certainly will and I'm happy to answer questions about that.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

We will begin Mr. Nicholson.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Thank you very much and thank you very much for your testimony.

To the Canadian Bar Association, thank you for your compliment that we're doing important work. You do important work in this country on so many different issues and thank you very much for that.

One of the things that you pointed out in terms of expansion of the mandate is this whole area of provincial jurisdiction. It's a pretty tricky business as you can imagine, any government trying to explain that it is now going to be funding groups to go after specific provincial legislation. There's some legislation where it basically covers both areas.

We were just talking about that the other day. Like family law, it's a little difficult to start splitting it between federal and provincial, but nonetheless, could you address that? Do you think that it is truly feasible for us to expand this to provincial jurisdiction cases?

[Sarah Lugtig]

Yes, we do think it would work, but we recognize that it would likely have to progress in consultation with provinces and territories.

The idea of family law being an example of a potential area to start in is interesting, because I think what you've identified there is that there may be priority areas where there's an intersection between federal and provincial law. That may be a place to start.

We recognize that there's complexity to it, but it is such a significant gap, and that is why we are recommending that this issue be studied more, obviously in consultation with provinces and territories.

Thank you for that question.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Thank you for that.

One of the areas that you said we should focus on—I think I have it right—is the groups in society that are most vulnerable. That's a bit of a shift in terms of what this originally was all about back in the 1980s when the court challenges program was instituted.

Much of the discussion was due to the fact that particularly in legislation like the Criminal Code.... Some of those provisions in the Canadian Criminal Code were almost 100 years old, but in fact many of them were 50 or 60 or even 100 years older than that. Updating laws that sometimes were somewhere between 100 and 200 years old to make them compliant was a huge task for the courts, for Parliament, and for everyone.

Are you saying that we've moved beyond that and we have to focus more specifically on individual groups and organizations that need help? Or is that still part of what we have to do?

[Sarah Lugtig]

What we would say is that this would be an evolution of that original intent. That original intent continues to be valid today, as we see. We still see equality cases and language rights cases going before the court. On the need that was identified early on, I think potentially the wish was to resolve most of the issues, but what we've discovered through the years with the program is that there continue to be important issues to be brought before the courts.

I think we would just say that there's the same initial impetus, in a sense, but respecting the modern reality that these issues continue to require litigation.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Thank you very much.

Mr. Chipeur, thank you very much for your comments. You're not the only person who has said that we have to make sure there is no bias in terms of who gets funded and who doesn't.

You made an interesting comment, though, and you had a long list of individuals who should not decide whether the case goes forward or whether there's a reasonable chance of success or, indeed, if that should even be one of the considerations. I'm not quite sure, then, who would make the decision if you put the application. If we eliminate that long list of people that you indicated, just how would it happen?

[Gerald Chipeur]

The idea when I mentioned the individuals—bureaucrats, law professors, and others—was to say that their discretion would not be the basis for making the decision, but the law would be. Obviously, there would have to be an official who would compare the law to the application and determine whether the application fit all the check marks. I'm not saying that you would not have an individual in that position. You would, but—

[Rob Nicholson, Conservative, Niagara Falls, ON]

Is this somebody who would be connected to the court challenges program? Is it somebody appointed by Parliament?

[Gerald Chipeur]

It could be. I think so. I haven't given much thought to whether it should be outside the Department of Justice. Maybe it should, because the Department of Justice is going to be defending most of these.

Maybe it should be someone who Parliament appoints and is responsible to Parliament. Maybe it's someone who is part of the finance department, since this is money. Maybe it's added onto a bureaucracy that's already there, such as the ombudsman's office or one of the other individuals who already has responsibility for interpreting and applying the law.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Thank you very much.

Ms. Zwibel, with respect to the Canadian Civil Liberties Association, you talked about the legal advice that goes into these bills. A case can be made that those departmental officials advising the justice minister have the same solicitor-client privilege as most people who receive legal advice.

Wouldn't you agree that a parliamentary committee such as this one, which is hearing individuals like yourself or others and analyzing various bills, is helpful? You probably wouldn't agree that it's a substitute, but it certainly gives the opportunity to members of Parliament to have a look at the constitutionality of these bills, which is obviously one of the components of every piece of legislation. Don't you think that's a reasonable comment?

[Cara Zwibel]

I think that the appearances of witnesses, including legal experts, to comment on constitutional concerns is certainly helpful to members of Parliament. I don't think it's a substitute for the legal opinion, but I appreciate the concerns around solicitor-client privilege.

The proposals that we're thinking of would not necessarily do anything to affect that privilege. One of the possibilities that's been suggested is that the minister would make a statement of compatibility. Rather than there being an obligation to report an inconsistency, there would be an obligation to comment on compatibility in a substantive and meaningful way, not necessarily revealing legal advice but a statement of compatibility that might then be assessed by someone independent who would be reporting to Parliament. It's not necessarily trying to change solicitor-client privilege, although I have to say that many of the experts we've talked to have raised concerns about transferring the notion of solicitor-client privilege to lawyers in the Department of Justice, who are certainly advising clients, in terms of the minister and the government, but also intend to uphold and protect the rule of law and to serve the public.

There is a concern that the public should have access to some of this information, but we're aware of those concerns and considering different ways that we might address this to give Parliament the information that it needs, while still protecting the role that Department of Justice lawyers play in advising the minister.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Your organization is looking into this, and you'll be presenting something.

[Cara Zwibel]

Yes.

[Rob Nicholson, Conservative, Niagara Falls, ON]

As the chair pointed out to you, most of what we're talking about is the court challenges program, and it's somewhat specific, but let's say there are broader considerations and even other issues.

[Cara Zwibel]

Yes, certainly.

I apologize. I think when I wrote to the committee expressing an interest to appear, section 4.1 was one of the issues we really wanted to address, but we certainly have views on the court challenges program. I agree with much my friends from the Canadian Bar Association have said in terms of expanding the mandate, particularly concerns around intersecting rights and expanding beyond the strict confines of section 15.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Mr. Fraser.

[Colin Fraser, Liberal, West Nova, NS]

Thank you very much.

I thank the witnesses who appeared before us today.

I really appreciate your being here and sharing your thoughts with us.

My first question is for Mr. Chipeur, just with regard to what you were alluding to on the merit of cases. A reasonable chance of success, in your opinion, shouldn't be one of the criteria being looked at when these applications come forward. Should merit ever be a consideration in looking at these applications?