Justice Committee on April 19th, 2016

[Gerald Chipeur]

—but let me just say I would be comfortable with either. What I'm opposed to, strongly opposed to, is consultation with law school deans and law school professors. They do not have any of the responsibility of government, they have their own pet project they're going to be studying, and they have opinions based upon their particular perspective. They've been elected by nobody, and they're not employed by anyone who is elected. Whoever it is that makes these decisions needs to be accountable, and I simply don't think that consultation into the private sector is the way to go, which was the standard under the other program.

[Murray Rankin, NDP, Victoria, BC]

In your exchange with Mr. Fraser, on the issue of whether there was a reasonable chance of success, I think you rejected that as a category and think it needs to be beyond frivolous and vexatious, and over that standard. Isn't that likely to lead to pet projects, no matter who has to make the first cut? In terms of limited government resources to fund anything, if we had a program, which I know isn't your view, to not consult widely in order to see what people with expertise in an area think, doesn't that leave it to the whim of a particular individual to decide thumbs up or thumbs down, based on what?

[Gerald Chipeur]

In my view, if you're going to go down this road, you have to go all in. I think you have to fund everything. Meritorious programs that you can't afford today will just have to wait. That's what's happening now. You will have a better program than having nothing, but if you replace what is in place now, which is nothing, with a program that is biased because you do this consultation, then you don't assure yourself of a program that will yield Carter-like decisions. Remember, if the “reasonable chance of success” test was there, Carter would never have been funded.

It seems to me that you need to just...first in, first out.

[Murray Rankin, NDP, Victoria, BC]

I think you're absolutely correct in saying Carter would never have been funded, or Rodriguez, and here we get a unanimous court decision 20 years later. That's an excellent point. Yet in your 10 criteria, number three was that we should provide no funding to re-litigate. How does that square?

[Gerald Chipeur]

My view is that we should respect precedents.

[Murray Rankin, NDP, Victoria, BC]

We shouldn't fund a case that might have reversed it, in the Carter context?

[Gerald Chipeur]

That's right.

I'm opposed to a funding model that would exclude Carter because of the reasonableness standard, and I am opposed to any re-litigation. I know these positions seem inconsistent, but they're not. That's my position. You may disagree with it, but that's my view: precedent matters.

[Murray Rankin, NDP, Victoria, BC]

It does seem inconsistent.

[Gerald Chipeur]

It's why I still disagree with the nine judges who—

[Murray Rankin, NDP, Victoria, BC]

It does seem internally inconsistent, but I'll leave that in the interests of time so that I have another opportunity to ask a question.

On this issue I agree with you entirely, and this is that more resources should be spent on the prior review, before we get to litigation at all. You mentioned section 4.1 of the Department of Justice Act, as Ms. Zwibel did as well.

Sadly, the last government was accused, rightly or wrongly, of providing a very low threshold of 5%, 10%, certainly less than 50% was okay, and we saw the results. There were many cases in which government legislation, probably despite the Department of Justice review, was struck down in the courts. I think you've put your finger on an important issue.

Why is it either-or? Why don't we say we need courts to do a better job at the front end through a standard that's more meaningful for review by Department of Justice lawyers, and at the same time, acknowledge that any well-meaning and good faith effort of legislators is going to be sometimes subject to necessary judicial review? It's not an either-or proposition, surely.

[Gerald Chipeur]

If we have the resources, then I think your point is well made.

Let me make one other comment. With all due respect to the former attorney general, I don't trust the Attorney General or his department to give opinions to me, or to you as members of Parliament. Here's what I would trust. I would recommend that all members of Parliament be funded so that they could hire their own lawyer, to get their own opinion from a lawyer they trust, as other democracies do. I would suggest you send someone to some other democracy south of the border and in Europe. I think we spend way too little money on individual review by you as members of Parliament, and you need more funding. Each of you needs more funding.

There's nothing wrong with the Attorney General putting a statement down, but I don't think it's worth the paper it's printed on. I think an opinion from a lawyer, your lawyer, is going to be much more valuable to you as a decision-maker.

[Murray Rankin, NDP, Victoria, BC]

Can I ask one more?

[The Chair, Liberal, Anthony Housefather]

One more short question, Mr. Rankin.

[Murray Rankin, NDP, Victoria, BC]

Thank you.

I have a specific question, perhaps to both of you. When you cited that Supreme Court of Canada decision, Mr. Chipeur, I wasn't sure, but was that the advance cost order type of provision?

[Gerald Chipeur]

No. This was a decision at the end of the appeal. It was a decision where the court said, “You've asked for costs. We're giving you costs because you meet this test.”

[Murray Rankin, NDP, Victoria, BC]

Ms. Lugtig, in the aboriginal context, there have been some successful advance cost orders, where lawyers, in advance of winning or losing, have been given a significant amount of the costs up front. Should it be a condition, sometimes, that you get an advance cost order before a court challenges program is funded?

[Sarah Lugtig]

Certainly the advance cost is a positive development and is relevant in equality cases as well as aboriginal cases.

What we would say on any policy question like that, such as whether advance costs should be required or that a request for costs should be made, is that careful consideration should be given to any policy to ensure that it's not undermining the basic rationale. Does it create, for example, additional barriers for litigants to make such a request before they can obtain funding from the program? Certainly it's a question to consider, and there will be other policy questions like that.

We urge this committee to think carefully about how this would play out in practice, whether it would create a barrier that would interfere with the underlying rationale of the program.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

We're going to go to Mr. Bittle.

[Chris Bittle, Liberal, St. Catharines, ON]

For the record, I should say that the previous attorney general wasn't such a bad guy.

[Some hon. members]

Hear, hear!

[Chris Bittle, Liberal, St. Catharines, ON]

I'd like to open it up to the Canadian Civil Liberties Association. We're discussing the court challenges program and I know you're going to present us with information afterwards, but is there anything you'd like to speak to now? I'll just open the floor to you to discuss that.

[Cara Zwibel]

Thank you for the question.

As I said, there's much that the Canadian Bar Association said that I agree with, and with respect, much that Mr. Chipeur said with which we disagree. The view certainly is that the court challenges program needs to be reinstated. We support expanding the mandate to address challenges to both provincial and territorial laws. Certainly, a focus on equality is not misplaced, but we need to understand equality in a broader sense. We agree that trying to fit a case within the confines of section 15, on all corners, may not be the best approach. Many equality cases have elements of section 7, the life, liberty, and security of the person protection.

In terms of the rights of incarcerated people, this is a very significant concern that we have. They represent a population for whom it's very difficult to access the justice system. Some of those challenges might come under other provisions of the charter, so we're certainly in favour of that kind of expansion.

The other thing I would like to respond to is the question that Mr. Rankin asked about, advance costs. It is important to appreciate the amount of work that would need to go into a case before even bringing a motion for advance costs. I think it's one of the reasons why setting a bar like that might be very problematic. For both the client and the counsel involved in that case, there would have to be a great deal of resources that go into it before the case would be ready for that. I should say that, despite the fact that there have been some good decisions on advance costs, and some good decisions after the fact where costs are not ordered in public interest cases, it's a significant risk for the client and the lawyer taking on that case. You often don't know it's going to happen until it's all said and done, which might be years later.

[Chris Bittle, Liberal, St. Catharines, ON]

Thank you.

I'll turn to the Canadian Bar Association, perhaps just to clarify in my mind one particular part of your submission regarding embedding section 15 arguments with other sections of the charter. Does that lead to an artificial mixing? Do you have opinions about whether other sections should be funded independently of section 15, such as section 2 or section 7, or is the position of the Canadian Bar Association that they should be embedded with section 15?

[Sarah Lugtig]

The position of the Canadian Bar Association is that, if they meet the necessary threshold, however that is articulated, those cases where equality rights intersect with other charter rights should be supported completely, when one determines the essential basis of the charter issue involves multiple charter rights that include equality rights. What happened under the previous program, and what we heard, was that there were some artificial kinds of distinctions made, that equality arguments might get funded but not the other arguments, and that it actually created some artificial ways of developing cases.

In fact, this approach would respond to the concern that you've raised and better support cases as they come forward.

[Chris Bittle, Liberal, St. Catharines, ON]

I'll open it up to everyone who wants to comment.

Does anyone have any view as to whether changes or reforms could allow those groups that may not have benefited under the previous program to partake in a better or improved court challenges program?