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Remarkable tribunal ruling against government beat the odds

Hey there, time traveller!
This article was published 26/1/2016 (424 days ago), so information in it may no longer be current.

It is, in one word, a remarkable ruling.

The Canadian Human Rights Tribunal ruled Tuesday that the federal government discriminated against thousands of First Nation children by providing less money for Child and Family Services on-reserve than it provided off-reserve.

Assembly of First Nations National Chief Perry Bellegarde looks on as First Nations Child and Family Caring Society Caring Society Executive Director Cindy Blackstock speaks about the Canadian Human Rights Tribunal regarding discrimination against First Nations children in care during a news conference in Ottawa, Tuesday, January 26, 2016.

THE CANADIAN PRESS/ADRIAN WYLD

Assembly of First Nations National Chief Perry Bellegarde looks on as First Nations Child and Family Caring Society Caring Society Executive Director Cindy Blackstock speaks about the Canadian Human Rights Tribunal regarding discrimination against First Nations children in care during a news conference in Ottawa, Tuesday, January 26, 2016.

Remarkable? At a time when tens of thousands of First Nation children across the country are taken from their homes by child welfare officials, we find out that First Nation families receive substandard support when compared with off-reserve families.

Equally remarkable is the fact that this was a ruling nine years in the making. For it was in 2007 that Cindy Blackstock, an academic and director of the First Nations Child and Family Caring Society, first lodged a complaint with the Canadian Human Rights Commission.

Remarkable as well because the federal government spent millions of dollars fighting Blackstock, including eight separate bids to get the case dismissed.

And, finally, remarkable because the Caring Society and the Assembly of First Nations, a co-applicant in the case, were able to pull together a legal team of five lawyers who contributed millions of dollars of their time to argue the case before the Canadian Human Rights Tribunal.

"This is a rare and unique moment," said Ken Norman, director of the Court Challenges Program of Canada. "I can’t recall a case quite like this. Given what happened to the Court Challenges program, it’s certainly the exception, not the rule."

In 2006, the Tory government effectively ended the Court Challenges Program, an arm’s-length, federally funded office that vetted and then partially funded cases involving substantive violations of language or equality rights. It was allowed to continue with all approved cases but was not allowed to take on new ones.

The program had many legal victories over the years, including protecting English-language rights in Quebec, and guaranteeing constitutional equality for gay and lesbian citizens.

The challenges program convened juries of legal experts to vet potential cases. The funding that was provided to lawyers or organizations heading up the legal challenges was generally below market rates, and capped at $50,000 per case.

Despite the high level of support for the program, the Harper government argued it was misguided and wasteful. It stopped the challenges program from taking in new cases in 2006. Later, it partially restored the challenges program’s capacity to take on cases involving language rights.

The former government’s argument in curbing support for the challenges program was that it consistently operated in a manner that was consistent with the Constitution and Charter or Rights and Freedoms. As such, providing taxpayer support to people to sue the federal government was unnecessary.

Unfortunately, the long list of constitutional challenges launched against the federal government, and Ottawa’s woeful record in court, was proof that this argument was thin. All you need to do is bring up topics like safe injection sites, prostitution, assisted suicide and mandatory minimum sentences to know the Harper government was, in fact, constantly testing the limits of the constitution.

The cancellation of funding did not stop motivated citizens or groups from taking the federal government to court. However, it certainly made it more difficult.

In the case of the most recent ruling at the Canadian Human Rights Tribunal, it took a coalition of five different lawyers, working pro bono, to bring the case to fruition. It took that long largely because the federal government did not spend a significant amount of time arguing the merits of the complaint; the gross majority of time was spent on procedural or jurisdictional matters, according to lawyers involved in the case.

David Taylor, a private bar lawyer from Ottawa who represented the Caring Society pro bono, said if the lawyers involved in the case had charged market rates, it would have cost millions of dollars to battle the federal government.

"They did everything they could to draw out the litigation with procedural and jurisdictional points," said Taylor. "The case was not focused on determining the merits of the case."

That strategy — slowing down legal proceedings with motions that do not address the merits of the case — has become more the rule than the exception for groups and individuals fighting government in court. It is a cynical strategy that exposes the ugly inequality that is rampant the legal system

From pared down legal aid resources, to the cessation of work by the Court Challenges Program, the lack of financial assistance is making it increasingly difficult, if not impossible, for people to have their cases heard in court.

That puts pressure on the new Liberal government to carry forward with an election pledge to restore resources to the Court Challenges Program and update its mandate.

Norman said no details have come forward yet on how much money from Ottawa could be available, or the expanded mandate for the program, but there is hope the upcoming federal budget will help fill in the blanks.

That’s what makes the timing of the Caring Society/AFN ruling so important, Norman said. With this one legal case, Canadians can see both the importance of holding the federal government to account in the courts, and the extraordinary measures necessary to do that in the absence of an effective publicly funded mechanism to support citizen litigation against their own government.

"It’s very rare that you can get enough pro bono service from lawyers and dedicated support from community members to move a case like this forward," said Norman. "With the promise the prime minister made during the election, we’re pretty encouraged that the (Court Challenges Program) will be renewed and updated."

dan.lett@freepress.mb.ca

Read more by Dan Lett.

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