Status of Women Committee on Dec. 11th, 2007

[The Chair, Liberal, Yasmin Ratansi]

Good morning, everyone. It's still morning, isn't it?

To the witnesses, I'm sorry, we have an emergency, and that's what we do--we go out and vote.

Committee members, I'd like to request that we finish this at a quarter to one, because a lot of us have to run to other meetings at one o'clock. Is that agreeable?

I think on your side there are only two of you here today, and both have to go. And I have to go to a meeting at exactly one o'clock.

[Sylvie Boucher, Conservative, Beauport—Limoilou, QC]

Yes, I have another meeting.

[The Chair, Liberal, Yasmin Ratansi]

So without much ado, let's start off.

Welcome to all of you here. We're doing the court challenges program.

We have with us, from the National Anti-Racism Council of Canada, Madam Muyinda.

From the Native Women's Association of Canada, we have Beverley Jacobs--welcome, we've heard you before--and Ms. Mary Eberts. Thank you for being here.

And from Regroupement québécois des Centres d'aide et de lutte contre les agressions à caractère sexuel, we have Madam Carole Tremblay.

Ah, j'ai oublié Captain Jennifer Lynn Purdy, speaking as an individual.

On teleconference we have Professor Kathleen Mahoney, and McGill University associate professor of law, Colleen Sheppard.

Welcome to everyone. I think we should start off with those who are on the teleconference.

Since we have so many witnesses and so many questions as well, could we ask you to limit your remarks to between five to seven minutes? Would it be possible?

Okay, you said five, thank you. Five minutes is perfect.

We'll start off with Professor Mahoney from the University of Calgary.

[Professor Kathleen Mahoney, Professor, Faculty of Law, University of Calgary]

Thank you.

[The Chair, Liberal, Yasmin Ratansi]

Since you can't see me, could you time yourself? My gavel won't be heard by you.

[Prof. Kathleen Mahoney]

I have my watch in front of me. Do you want me to go ahead?

[The Chair, Liberal, Yasmin Ratansi]

Yes, please. Thank you.

[Prof. Kathleen Mahoney]

Thank you very much.

I really would like to thank the committee for this opportunity to provide some input. I must admit, however, I haven't had too much time to prepare because it was rather sudden. In any event, I wish to give you my thoughts on this, as scattered as they may be. But I think this is so important that you're discussing this, and notwithstanding the fact that I would have liked a bit more preparation time, I still wanted very much to do this.

In terms of my overview of the court challenges program, I see it as having enormous benefit to Canada. In its essence, it's an affirmative action program, you might say, for the disadvantaged in our country. But I think the spinoff benefits are quite profound and I think the committee should think about those benefits as well as the benefits to disadvantaged groups.

First of all, one benefit to Canada is that the court challenges program provided a vehicle whereby our most important laws, our charter, would be interpreted by the court. And as the court challenges program allowed other people to come forward with their views about how laws impact on them, the chances of having the supreme law of our country interpret it in the best possible way, I think, was enormously enhanced because very broad-ranging views about the impacts of laws on people were heard, and the context of the application of the law was able to be much better understood. So that's one benefit.

Another benefit of court challenges, in my view, was the engagement of society that it promoted. I'm a legal academic and I do some practice in the courts. But what I've discovered...and I was very much engaged, as a member of the legal committee of LEAF but also as counsel in a couple of the important cases, in particular the Keegstra case and the Butler case, the “speech” cases. In my experience in doing these cases, I worked with a Calgary law firm and the whole firm got behind this effort in a very good way. People would literally stay all night to help assemble the factums, to help give advice on the arguments, and so on. I think it engaged the legal profession. It also engaged the media to a large extent, academics, and the public generally.

I remember when a lot of those first decisions were coming out of the Supreme Court of Canada on equality. They were front page stories in The Globe and Mail and other newspapers, and they engaged the public in what it means to be a Canadian, what does equality mean in our country, what does discrimination mean, how are people being treated and why are they taking these cases. I mean, it generated that kind of national debate, and I think that's a very good thing. I think for many people it was the first time they started to become engaged with their own sense of Canadian identity. So education was also a benefit that overlapped with the engagement of society.

When you think about cases like the Jane Doe case, for example, where the police used a woman as bait in order to solve a rape case, that engaged the public on the difference between good policing, equal policing, policing that respected the dignity of women, and policing that didn't. You can come to the same result--apprehending criminals--but the Jane Doe case underscored how very important it is to keep equality principles in mind in police enforcement.

Similarly, there's education on hate speech. In the Keegstra case, we had a schoolteacher preaching hatred from the front of the classroom. I think that case demonstrated to Canadians that there are huge responsibilities on teachers. There's also huge power there.

The Keegstra case was not only a prosecution of one man by the government, but when equality groups weighed in and when LEAF weighed in on that and started talking about the effects of speech on people, I think it raised awareness in the Canadian public of these very important matters. Those are just a couple of cases, but there were many that would also have that impact.

A fourth benefit is access to justice, of course. We have legal aid in this country, but it's very limited in its application. It's only for people who've committed serious criminal offences, and it doesn't touch any of the jurisprudence that's required to define disadvantage and equality, and what our country means when it says that it's a country that respects human rights. The court challenges filled, to quite a large extent, that void and gave access to justice to many other people who never, ever otherwise would have appear before the courts.

Fifth, I'm just about out of time, but I'll quickly say that I think another enormous benefit—and I've certainly experienced this myself in my travels internationally—is that it has enhanced Canada's reputation beyond measure in terms of our relationships with other countries, because it's such a democratic concept to enable those in society who are the most disadvantaged to challenge government.

You've no doubt heard the expression “speaking truth to power”. Court challenges allowed that to happen. Countries around the world recognized that as being hugely creative, courageous, and really putting in action and putting in substance all the lovely rhetoric around human rights that states like to present as being their positions. Canada actually did something about it, and with huge results.

I have much more to say, but my time is up. I'd be very happy to try to answer some of your questions.

[The Chair, Liberal, Yasmin Ratansi]

Thank you very much.

We'll now go to Associate Professor Colleen Sheppard, for five minutes.

Could you please stick within that timeline so we can get in as much as possible? Thank you.

[Prof. Colleen Sheppard, Associate Professor, Faculty of Law, McGill University]

Thank you.

Thank you for inviting me here. I teach Canadian constitutional law, discrimination and the law, and feminist legal theory. I also work with the McGill Centre for Human Rights and Legal Pluralism.

In the past I have been involved in working on a volunteer basis with the National Association of Women and the Law on a constitutional challenge, the Gosselin case, with the Legal Education and Action Fund. Also, I've worked with the Centre for Research-Action on Race Relations, in the Lavoie case, challenging the citizenship preference, and with the Ontario Métis association.

I have four points I want to raise. As with Professor Mahoney, I didn't have time to do extensive research for this because I was just asked at the end of last week to appear before you.

First of all, let me say that I commend the committee for being concerned. I was asked to look particularly at the impact on women, and in particular, on all diverse communities of women, including aboriginal women and women from racialized communities. I think it's important to remember that gender equality engages us in an inclusive approach that is attentive to how inequality affects the lives of diverse women facing multiple overlapping and intersecting forms of discrimination, including sexism, racism, the ongoing effects of colonialism, poverty, ageism, exclusions linked to disabilities, sexual orientation, and language.

I applaud the committee for its concern with looking at women and discrimination against women from an inclusive and broad perspective. I think it will be important to ensure your deliberations are informed by consultations with a broad range of women from those communities.

The second idea I want to mention is really more of a constitutional point. When you're thinking about the impact of the abolition of the court challenges program, specifically on aboriginal women and women from racialized communities, it's important to be aware of how divisions of power questions affect the issue.

The court challenges program, as you know, funded challenges to federal laws, policies, and programs. While there's no doubt a need to develop the parallel initiatives at the provincial level, a number of areas of federal jurisdiction are of particular significance to aboriginal women and women from racialized communities.

I will name just a few. If you look specifically at the Constitution Act, 1867, the federal government has express jurisdiction over “Indians and land reserved for the Indians”; “Naturalization and aliens”; federal penitentiaries; criminal law; “Marriage and Divorce”; unemployment insurance, which includes maternity and parental benefits; and shared jurisdiction over old-age pension, survivors, and disability benefits.

Now, a simple enumeration of these domains of jurisdiction, I think, makes clear how critical many of them are to the lives of aboriginal women and women from racialized communities.

You heard testimony last week, I believe, from Sharon McIvor and her challenge to the exclusionary provisions of the Indian Act. Other examples of equality issues implicating areas of federal jurisdiction in particular include immigration and refugee law, situation of domestic workers, spousal sponsorship, domestic violence and refugee determinations, human trafficking and the sex trade, citizenship preferences in civil service, survivor pensions and elderly women, the treatment of aboriginal women in federal penitentiaries, family property on first nations reserve lands, questions about how racialized women are treated in the criminal justice system, and exclusion of precarious workers from various government benefit schemes.

I haven't done extensive research on all of the equality cases funded through the court challenges program, but many cases that were funded through that program touched upon some of the issues I've just enumerated. You can go to the annual reports or your researchers can look through the annual reports of the court challenges program to get a full enumeration of the cases.

A third point I want to make is this. I think the court challenges program is particularly important because it provided funding to community organizations, civil society organizations devoted to the advancement of human rights. These organizations have played a critical role in ensuring that the needs and interests of individuals from socially disadvantaged groups are represented and reinforced in their struggles to seek justice through the legal system. In my view, government support for these organizations is fundamental to ensuring a robust public infrastructure for advancing human rights.

In the statutory domain of human rights anti-discrimination law, we have human rights commissions that were established to ensure equitable access to justice for all citizens. But even within this model, community organizations have played a critically important role. Many of you will remember the Action travail des femmes case, one of the biggest systemic discrimination, gender-based cases under the Canadian Human Rights Act, where Action travail des femmes played a critical role in pulling together all the evidence on behalf of the individual women.

In the charter domain, we do not have human rights commissions, and individuals are left to initiate court challenges through the regular litigation process. Such a prospect is an enormous undertaking. For groups and for individuals, particularly if they're from vulnerable and socially disadvantaged groups, it's highly unlikely that they will have the resources or the knowledge to pursue legal action as individuals. Therefore, in my view, the role of organizations and the funding of these organizations through the court challenges program was essential to securing the advancement of equality.

[The Chair, Liberal, Yasmin Ratansi]

Could you wrap up, please?

[Prof. Colleen Sheppard]

The final point I want to make is that the court challenges program did more than just fund individual test cases. It also funded groups to do research and to engage in conferences and other educational activities around equality rights. Again, the information about the full range of activities of the court challenges program is available.

To conclude, I just want to highlight that although the court challenges program was not a panacea for all the changes that we need to secure a more equitable and just society, in my view the decision to discontinue funding nevertheless has serious negative effects on the lives of women, particularly some of the most vulnerable women in our society.

Thank you very much.

[The Chair, Liberal, Yasmin Ratansi]

Thank you.

I'd like to tell the witnesses that there is the opportunity to do whatever you miss out from your presentation when we ask the questions, because we need to ask questions.

I will now go to Madame Muyinda, for five minutes, please.

[Estella Muyinda, Executive Director, National Anti-Racism Council of Canada]

Good morning, and thank you for this opportunity.

I'm speaking on behalf of the National Anti-Racism Council of Canada, a non-partisan Canada-wide non-government organization. NARCC is comprised of approximately 150 national, regional, and local community-based organizations, and 60 associates. Its membership includes aboriginal organizations. Through NARCC, these organizations provide a national voice against racism, racialization, and all forms of related discrimination and intolerance.

So who are we talking about when we talk about racialized women? As you are aware, racialized women are often described in official government terms as members of the visible minority, or the immigrant from non-western countries, or the newcomer from the underdeveloped world, intersecting with other factors such as ethnicity, language, place of origin, place of residence, disability, age, sexual orientation, plus poverty and many other factors. On that basis, cases supported by the court challenges program that interact with any of the enumerated grounds under section 15 of the charter would impact directly or indirectly on racialized women.

Racialized women oftentimes experience marginalization by their association with racialized men. As such, when racialized men are adversely impacted by laws and policies or practices, racialized women also bear the brunt of the adverse impact. In my presentation I will give examples that have as a central figure racialized men—for instance, reported cases of racial profiling—however, with the results impacting on all racialized group members. My presentation, I hope, doesn't take away or detract from my submission with a focus on racialized women.

For racialized group members, inclusion in the notion of equality before and under the law as provided by section 15 of the charter has been an issue of grave concern—for instance, on issues pertaining to employment and immigration. Access to justice continues to be a topic of discussion, and there's ongoing concern about discriminatory policies and practices and the application of such in a discriminatory manner. There's concern in gaps in legislation that is intended to protect racialized women, their children, and partners.

Due to where racialized women are situated, there's a keen interest in having the court challenges program continue to exist, because it helped fund challenges to legislation that excluded them. It helped correct gaps in legislation and supported challenges to government policies and practices that were applied in a discriminatory manner. In this vein, the areas of particular interest, I can repeat, are immigration, customs, employment discrimination with respect to hiring and promotion, racial profiling, sentencing, exclusion from funding—

[Sylvie Boucher, Conservative, Beauport—Limoilou, QC]

Madam Chair, could you please ask Ms. Muyinda to slow down, please? The interpreters can't follow her.

[The Chair, Liberal, Yasmin Ratansi]

Be a little slower.

[Estella Muyinda]

Okay, I'll be slower. Will I still get my extra two minutes?

[The Chair, Liberal, Yasmin Ratansi]

Oh, yes.

[Estella Muyinda]

Well, the impact of the cuts to the program on racialized women can be described from the test case on the Chinese head tax and the Chinese Exclusion Act. The case was funded by the program, but it was dismissed on the preliminary motion. However, it opened up some doors to negotiations, as the Chinese Canadian National Council received negotiation funding from the court challenges program. The negotiation strategy helped the impacted community focus on a position that enabled it to present the injustice of the Chinese head tax to the Chrétien, Martin, and Harper governments, resulting in the 2006 parliamentary apology and redress announcement by the current government.

The program also funded case development applications for racialized women wishing to develop a case about visible minority hiring and promotion in the civil service or senior management positions; and funded racialized women wishing to develop case challenges on issues concerning employment insurance eligibility and their failure to access available benefits due to the confluence of poverty and race. Unfortunately, those two kinds of cases can no longer be funded because the program has been cut.

Research was also funded on the intersection of race and other enumerated grounds. For instance, research on race and disability provided an insight into the issues that various racialized group members with disabilities face.

Research and consultation on racial profiling paved the way for discussion of the relevance and the need for race-based data collection. These activities helped highlight the prevalence of racial profiling by law enforcement agencies and border crossing officials. You can see this in the cases of Richards and Decovan Brown.

The consultation that reflected the two parts of the court challenges program, language rights and equality rights, addressed the barriers faced by the racialized immigrant women who speak French—a minority within the racialized group. The women wished to gather to speak about and identify issues related to the multiple layers of prejudice and barriers they face in trying to access services. They also wished to learn about the charter's equality rights, as they were related to their struggles for housing and employment.

The program, therefore, is seen as one of the mediums by which government can ensure checks and balances in the Canadian justice process. For racialized group members, in particular women who come from repressive countries, the transparency, accountability and access to change-of-government laws, policies, and practices through the application of the court challenges program was a welcome relief. It proved that Canada was committed to a democratic system and to adhering to equality rights enshrined in its constitution. To racialized women, cutting funding appears to be a regressive move by government in relation to the advancement of equality and language rights.

Contrary to the argument that funding the court challenges program is about government wasting money in challenging itself, such funding reflects a process that allows the marginalized to highlight laws and practices that are discriminatory, and to do so in a manner that respects their rights. It's about a country that is willing to be a world leader in its commitment to human rights and equality rights by using a process that suggests that government is accountable and transparent in how it makes justice for all.

[The Chair, Liberal, Yasmin Ratansi]

Ms. Muyinda, we have your presentation, so if that's all....

[An hon. member]

[Inaudible--Editor]

[The Chair, Liberal, Yasmin Ratansi]

Oh, I'm the only one with it. I'm sorry, continue on. Bring us to the summary, please.

[Estella Muyinda]

Okay, this is the summary.

The cuts to the program mean that the dialogues that are the precursors to the development of strategies to combat racism cannot continue, as there is no funding to sustain them.

The cuts mean the loss of an organization that was flexible in accepting novel arguments or ideas to ensure that the marginalized have access to justice.

We have lost a forum and opportunity to identify gaps through consultation on our case development.

We have lost the locus that focuses on racialized women, including other racialized group members.

The cuts also mean that a number of issues that could have been raised and explored quickly can no longer be. For instance, the issue of reasonable accommodation in Quebec and the impact of that discourse on the racialized community would have been raised by racialized women, and probably would have been funded by the program. Other related issues may have been the discourse about wearing the niqab when voting.

I would conclude by urging that the government restore the funding to the court challenges program because of how it has benefited racialized group members.

[The Chair, Liberal, Yasmin Ratansi]

Thank you very much.

We now go to Madame Tremblay, for cinq minutes, s'il vous plaît.

[Carole Tremblay, Liaison Officer, Regroupement québécois des Centres d'aide et de lutte contre les agressions à caractère sexuel]

I would like to thank you for giving the Regroupement québécois des Centres d'aide et de lutte contre les agressions à caractère sexuel an opportunity to take part in the work of this Committee.

I represent the Regroupement. Our organization includes the vast majority of organizations that assist teenagers and women who are victims of sexual assault in Quebec. We also help the families of those victims. We provide direct assistance to about 8,000 people a year, not including interventions that focus on prevention, where we reach about 11,000 people on a yearly basis, primarily young people.

Today, my presentation will be in two parts. First, I would like to briefly provide some background that shows the positive impact the Court Challenges Program has had on women who are victims of sexual assault. The second part of my presentation will focus on the need to maintain this program in its entirety for the future.

First of all, let's talk about the program's positive effects. The fact that the section of the Criminal Code intended to ban the publication of the victim's name, or any information likely to identify the victim, as part of the criminal trial has not been struck down by the courts is a direct result of the financial assistance provided under the Court Challenges Program to parties who intervened before the Supreme Court of Canada to defend it. It's important to remember that maintaining that section of the Code has encouraged some sexual assault victims to lay charges, by sparing them the trauma of embarrassment and humiliation that are often the consequence of trials on sexual assault charges that attract broad media attention. If that section of the law had not been fiercely defended, there is a very good chance it would have been struck down. The consequence of its removal would have been a lower complaint rate and, consequently, a form of immunity for the perpetrators of this kind of crime.

In addition, the financial assistance provided under the Court Challenges Program has made it possible to defend the regime introduced into the Criminal Code whereby an accused does not have automatic, unlimited access to the victim's personal file. It's important to remember that the regime that protects the rights of sexual assault victims places the rights of the victim and the accused on an equal footing. If this protection regime had not been fiercely defended, it is quite probable that many victims would not have availed themselves of their right to lay charges, for fear that the details of their private life would be laid out for all to see during the trial or for fear of having to terminate their psychological support, because of the possibility that content could automatically be used by the defence.

As for the need to maintain the program in its entirety, we would make the following arguments.

First, despite notable progress, the victims of sexual violence, primarily women and children, continue to be a disadvantaged group in terms of their equality rights, and are still subject to persistent prejudice and stereotyping.

Second, history has shown that unpredictable, repeated attacks are being made on the legal protections currently afforded victims. We saw two examples of that earlier, in my previous comments.

Third, because of the prosecutor's duty of neutrality in criminal matters, it is absolutely critical, in certain situations, that victims have an opportunity to be represented by independent Crown counsel when there is a danger that their rights will be violated.

Finally, and this final argument is probably nothing new, because you have surely heard it before. There is still a great deal to do to ensure better access to the courts and to justice. Continuing the Court Challenges Program means making effective rights currently laid out in written documents.

Thank you.