FEWO Committee Report

2. BENEFITS TO MINORITY AND RACIALIZED WOMEN

The National Anti-Racism Council of Canada discussed the value of the CCP in assisting minority and racialized women in challenging discriminatory legislation and in addressing “gaps” in the legislation. They noted that minority and racialized women continue to face discriminatory practices in areas such as employment and immigration and access to the justice system:

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.^[25]

Witnesses identified the benefits that accrue from the Program’s funding of case development applications, research and consultations.  This funding contributes to challenging and revealing discriminatory practices experienced by minority and racialized women and men, particularly when such practices intersect with other “enumerated grounds” ^[26] such as disability.  The Program’s funding also helped highlight the need for race-based data collection and the effects of the practice of racial profiling on equality rights.

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. ^[27]

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.^[28]

The CCP funded consultations which revealed how minority women who spoke French and who came from racialized groups faced prejudices and barriers.

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. ^[29]

3. BENEFITS TO WOMEN WITH DISABILITIES

The DisAbled Women's Network of Canada discussed the ways in which the Program benefited women with disabilities, a group that continues to be “underrepresented” and “non-existent in the development of government policy and program delivery.” With the assistance of the CCP, women with disabilities were able to correct unjust policies that had a negative impact on their lives.

The equality interests of women with disabilities continue to be underrepresented—or in many cases non-existent—in the development of government policy and program delivery. Likewise, there are very few equality test cases that deal with the many levels of discrimination experienced by women with disabilities. Therefore, DAWN Canada and its affiliates must continue to use every opportunity to continue to seek equality rights for women with disabilities.^[30]

Court challenges programs were successful in nine out of the twelve cases DAWN has participated in, suggesting that this program was meaningful and relevant for assisting disabled women to achieve justice in policies that had unintended negative consequences for their lives. ^[31]

4. CANADA’S INTERNATIONAL REPUTATION

Witnesses frequently observed that the CCP enhanced Canada’s international reputation and its “human rights machinery.”  They noted that the Program was a vehicle for complying with Canada’s international obligations.

… 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.^[32]

The Court Challenges Program has been recognized repeatedly by international treaty bodies as a mainstay, a central component of Canada's human rights machinery, and a way in which we comply with those international human rights commitments. It's been recognized by the Committee on Economic, Social and Cultural Rights in 1998 and 2006, by the Committee on the Elimination of Discrimination Against Women in 2003, and by the Human Rights Committee in 2005.^[33]

The need for such a program is supported at the highest levels of the international community. The United Nations committee on the elimination of racial discrimination and the United Nations Committee on Human Rights have both directed Canada to better ensure the efficiency and accessibility of the complaint systems related to racial discrimination and to enhance the legal system so that all victims of discrimination have full access to effective remedies.^[34]

During the meetings, all the witnesses but one indicated that with the cancellation of the Program’s funding, women have “lost a key equality rights accountability mechanism.” They pointed out that without such funding, “equality rights in Canada exist only for the rich.”  Furthermore, witnesses underlined the fact that the CCP was the only mechanism that helped guarantee the charter rights of all Canadians.  The Committee heard that the Court Challenges Program was a relatively inexpensive program but a highly effective one at just under $3 million a year. ^[35]

Women have lost a key equality rights accountability mechanism that's fundamentally necessary within our parliamentary democracy.^[36]

By de-funding the Court Challenges Program, we have essentially made equality rights in Canada exist only for the rich. For the people who are disadvantaged in this country, women among them, we now do not have access to the constitutional rights we fought so hard to get in 1982 and were so proud of when they were put into the Constitution.^[37]

The Court Challenges Program was cut, even though women and minority groups are still not treated with equality under the law. I ask you this: What other mechanism exists that facilitates court challenges to guarantee the charter rights of all?^[38]

The Committee heard how the Program’s cancellation of funding had an impact on a specific case.  Initially, Sharon McIver, with funding from the CCP, was able to legally challenge the discriminatory manner in which Indian status is determined under the Indian Act. Even though British Columbia’s Supreme Court has recently ruled in her favour, this ruling is being appealed by the federal government. ^[39]   The Committee noted that Ms. McIver did not have the resources to defend the decision made by the B.C. Supreme Court. 

The B.C. Court of Appeal is going to cost about $120,000. I do not have $120,000. My family does not have $120,000. … I have no resources, and lack of resources means we cannot mount a defence of this excellent decision … they've stripped from me the access to the resources I might have had to defend my excellent decision. This is a mechanism I cannot overcome. If I cannot mount a defence, the decision will be lost.^[40]

Witnesses told the Committee that Aboriginal women were left with “no defence” against the discriminatory effects of the Indian Act.  They also noted that Aboriginal communities will no longer have a mechanism to challenge future rulings made in the area of matrimonial property rights.

Without means like the Court Challenges Program, women who are subject to the discrimination in the Indian Act have no defence against an influence on their lives that begins before they are born and lasts until after they die.^[41]

There will be two significant issues in the coming years, or perhaps in the coming months, on which the federal government will have to take a position. I will only talk about one of them. For example, how will the termination of matrimonial regimes in the Aboriginal communities play out? Lawmakers are likely to take a position on this. This is something that we will need to follow. Because the Court Challenges Program no longer exists, we will have to see whether what the federal government puts in place is deemed appropriate by the 11 Aboriginal communities in Canada. We will have to follow that issue very closely. ^[42]

The Committee heard that for minority and racialized women, the funding cuts were a “regressive move. ”  They also highlighted the fact that minority women who also speak French “are losing both ways.”

To racialized women, cutting funding appears to be a regressive move by government in relation to the advancement of equality and language rights. ^[43]

The program funded equality and language rights, and we shouldn't forget the language rights piece of it. In this regard, I would bring up the racialized women from that group who are losing both ways: they're losing with respect to language rights and they're losing with respect to equality rights. ^[44]

In addition, witnesses pointed to the negative effects the cancellation of funding has on Canada’s international reputation. In particular, they were concerned with Canada’s ability to comply with international treaty obligations and its ability to “speak and act on the global level.”

Though the Court Challenges Program has been pointed to in part as a means of compliance with international human rights committees, there is no indication of how we might continue such compliance in the absence of the Court Challenges Program. Will this measure send a message to our international partners that we in Canada no longer care and, worse, also send a message at home and abroad that continued discrimination might be acceptable?^[45]

When we start to de-fund programs like that, we are feeding into a larger degeneration of our authority to speak and act on the global stage.^[46]

The majority of the witnesses emphasized the need for reinstating, maintaining and expanding the Court Challenges Program noting that “The federal government should not fear scrutiny of fair and equitable legislation and policies using this program.”^[47]

However, one witness supported the Program’s cancellation and noted the need for greater accountability.

The Court Challenges Program is an example of government corruption and taxpayer abuse. This conclusion is based on the fact that the program, although entirely funded by the taxpayer, was unaccountable to the public for its financial and other decisions because it is not subject to the Access to Information Act and did not report to Parliament. As a result, the directors of the program used it to promote an ideological, left-wing agenda to the detriment of all those holding a different perspective. ^[48]

Many witnesses indicated that the CCP was a program that advanced the broader public interest and helped Canada address problems of racism and sexism. They pointed to the need to expand the Program’s equality rights to the provincial and territorial levels as recommended by the United Nations Committee on Economic, Social and Cultural Rights in 2006.^[49]

The court challenges definitely is a very good program. It would be better if it were broader based, if it were based in such a way that provincial legislation, for example, could be argued to be either upheld, struck down, or interpreted in ways that were more inclusive and protective of human rights. ^[50]

The Committee heard that in addition to the Court Challenges Program, there was a need to ensure legal aid is “widely available to impoverished people in pursuit of their rights” and in assisting individuals in completing relevant documentation.^[51] 

The Committee took particular note that without the financial assistance of the CCP, individuals who wish to pursue court challenges have few avenues for raising money. Witnesses also emphasized that raising money for litigation was “extremely difficult” and required individuals who were “highly, highly committed.”^[52]  Witnesses informed the Committee that “litigation is not a charitable activity.”

The charitable tax laws currently say that litigation is not a charitable activity. That means under our current tax laws you cannot raise money to support a piece of litigation. So you cannot get a tax receipt if you're raising money for a particular piece of litigation that is not a charitable activity. When we lose the Court Challenges Program, we cannot go directly, under our current tax laws, to raise money privately with any advantage.^[53]

The Committee heard that there were multiple areas of federal jurisdiction involving equality issues.  The witnesses reminded the Committee of “how critical many of them are to the lives of Aboriginal women and women from racialized communities.”  These 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
• treatment of racialized women in the criminal justice system
• exclusion of precarious workers from various government benefit schemes ^[54]